circuiteer – spring 2005 23/3/05 10:13 pm page 1 the...

The CircuiteerIssue 20

News from the South Eastern Circuit Spring 2005

Middlesex Guildhall: Death Row RespondingCrown Court or Supreme Court? and Debutantes to Clementi

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CIRCUITEER – SPRING 2005 23/3/05 10:13 PM Page 1

The Circui teer 2

When I read Catch-22 as a teenager, the phrasewhich stuck in my mind was, ‘they can do anythingto you which you can’t stop them from doing’.Barristers may feel something similar. TheGovernment, so concerned with restrictivepractices at the Bar, is unrepentantin wielding its own monopolypowers. It has the final say in thelevel of publicly funded fees and inwhen they are paid. In due coursethey will also have the final say inhow the profession is regulated.

We have just celebrated thefiftieth anniversary of a generalmeeting of the Bar where theagenda was—low fees and latepayments. The wise barrister has asense of history, keeps wellinformed and does not panic. TheCircuiteer is written for such abarrister.

Sir David Clementi reported last December,and the Circuit’s former Leader, Stephen Hockman,Q.C., explains the best and the worst we have toface. Anyone who has read the final report will feela sense of disappointment. Criticisms andchallenging proposals were expected, but onehoped for something that was more magisterialthan petulant in tone. And then there is paragraph13 of Chapter F: ‘The absence of an articulatedconsumer demand, in the context of a marketwhere restrictive practices operate as a barrier toinnovative forms of service delivery, would not initself be a persuasive argument that other forms ofservice delivery should not be permitted’.

Family lawyers have a revised fees structure todeal with (Carol Atkinson explains how to find yourway around that). Criminal Procedure Rules,adopting the vocabulary of the Civil ProcedureRules, have been brought in (Rules Committeemember Tom Little issues an appropriate warning).Civil practitioners will remind their criminalcolleagues that the amount of litigious work hascollapsed since their own ‘Woolf reforms’, withsome of it now being heard in Amsterdam, Parisand New York. However, defendants are unlikely to

be able to move their trials to a more conducivejurisdiction, nor to ‘cut a deal’ with the other side,usually.

The Circuit has revisited Warsaw, todemonstrate the English method of criminal trials,

thanks to the organiser, IainMorley, who last autumnanswered Steven Kay’s call forpro bono volunteers in thedefence of the ‘litigant inperson’, Slobodan Milosevic.As this magazine goes to press,Iain is going to Arusha, to turngamekeeper by becoming awar crimes prosecutorhimself. For those who feel letdown by the criminal justicesystem in England, Max Hardyand Aaron Watkins do not pulltheir punches about theseamier side of charming old

New Orleans. The Law Lords may eventually move across

Parliament Square to the Middlesex Guildhall,where the historic courtrooms are exactly not thesort of room where they like to hear cases. KarenEvans pays tribute to the crown court we still loveand use. As for the quality of their decision makingin the interim, Charles Hollander, Q.C., analyses themessy completion of part one of the Three Rivers vBank of England saga, and Noémi Bird speaks up forvulnerable defendants following the CamberwellYouth Court decision.

Some 175 years after the event, the questionwas posed, ‘what was the effect of the FrenchRevolution?’ to which the reply was, ‘it is too earlyto tell.’ Barristers may always feel that way aboutthe Criminal Justice Act 2003. Professor DavidOrmerod provides us with a guide to the hearsayprovisions. They are already ‘on the agenda’ eventhough we are still learning how to cope with ‘badcharacter’. The implementation order for that, werecall, was accompanied by a press announcementfrom the then Home Secretary. He said it wouldensure that ‘the strong presumption should be thatthe conviction should be revealed to the jury’. I

recently attended a trial at Blackfriars which wouldhave been a bitter disappointment to Mr. Blunkett.The defendant was charged with assault [on an off-duty policeman] with intent to resist arrest, but theRecorder found that the jury would not be helpedby knowing about a single, 5-year old conviction forassaulting his girlfriend; neither would convictionsfor theft help them decide the inchoate issue of‘credibility’ . Prosecution counsel later explainedthat she was instructed to make a ‘bad character’application in all cases. This suggests that the CPS,who had been unaware of the facts of the earlieroffence, had not approached the case on its merits.I have since been told that in Kent the CPS is moreflexible, and heeds counsel’s advice.

Finally we tour the Circuit and Circuiteers.The advantages of sole practice are explained.John Morgans introduces us to the fine Circuit cityof Norwich. There are announcements about theDame Ann Ebsworth Memorial lecture, the annualdinner, the Circuit trip, the Keble and Floridacourses, and much else.

Those who consult the April 2004 Circuiteerguide to money laundering should be aware of thedecision of the Court of Appeal on March 8 inBowman v Fels which might be subtitled, ‘thenightmare is over’. Barristers are not, after all,required to make disclosures under section 328.The court reached this conclusion in three stages:(i) Section 328 goes further than any EU directiverequired the Government to go; (ii) even thoughParliament was entitled to go there, a courtjudgment or order is not entering or becomingconcerned ‘in an arrangement’; and (iii) since it didnot expressly exclude legal professional privilege,LPP survives and counsel is not entitled to discloseinformation about his client to NCIS without theclient’s permission. There we are, unless and untilNCIS appeals.

As before, I welcome feedback and futurecontributions. This issue’s authors include aprofessor, a pupil, an art historian and the ViceChairman of the Bar.

David [email protected]

A Note from the Editor

Table of ContentsA Note from the Editor page 2

Leader’s column page 3

Middlesex Guildhall: Crown Court or SupremeCourt? by Karen Evans pages 4-5

The Criminal Procedure Rules:A Culture Change by Tom Little page 5

Death Row and Debutantes in New Orleans,by Max Hardy pages 6-7

What happened next?by Aaron Watkins page 8

South Eastern Circuit Football page 8

Hampel Goes to Warsawby David Wurtzel pages 9-10

Defending Milosevicby Iain Morley pages 11-12

Responding to Clementi byStephen Hockman, Q.C. pages 12-13

Life after Three Rivers byCharles Hollander, Q.C. page 14

Hearsay Provisions byProfessor David Ormerod page 15

The Revised Family Law Feesby Carol Atkinson pages 16-17

Being in Norwichby John Morgans pages 18-19

Special Measures for Defendants?by Noémi Bird page 19

Sole Practitioners byMary MacPherson page 20

Dame Ann Ebsworth Memorial Lecture by Philip Bartle, Q.C. page 20

From Around the Circuitpages 21-23

Upcoming Events page 23

List of Circuit Officers page 24

Annual dinner booking form page 25

The Circuit Trip and Advocacy in Florida page 26

Keble 2005 page 27

CIRCUITEER – SPRING 2005 23/3/05 10:14 PM

3The Circui teer

The good newsOn 24th June we will be holding the Circuitdinner in a restored Lincoln’s Inn Hall. Our guestof honour will be Sir Sydney Kentridge. Sydneyis a courageous man, a masterful advocate, and agreat supporter of theindependent Bar. He will, I amsure, put the Bar’s presentdifficulties into a perspectivewhich fortifies us. On 30thJune we will be holding inInner Temple ParliamentChamber the first annualEbsworth Memorial Lecture,named after Dame AnnEbsworth, who gave up hersummer holiday every year toteach at Keble. The speaker isthe Australian High Court judgeand jurist Michael Kirby. Iexpect both events to be well attended and Iencourage circuiteers to book early. Our twinningwith the Warsaw Bar is going well. They enjoyed ataste of advocacy training in February and arethinking how it might be adapted in their civilsystem. I have also been encouraged by the Circuitmembership’s pro-active response to the CriminalJustice Act 2003 and the Criminal Procedure Rulesreforms. Andrew Bright, Q.C. and Kaly Kaul havebeen organising Circuit training. The Cambridgecourse on 19th March attracted over 100participants for an intensive workshop at which arange of silks, juniors and judges spoke. Our"sweep up" course on 16th April in London(BPP Law School) will have over 250participants. If you have not yet been trained, thisreally is your last chance to avoid calamity.Remember that the Hearsay and Sentencingprovisions come into effect on 4th April, as do theCriminal Procedure Rules. Overall I amimpressed by the desire of the publicly funded Barto maintain its professionalism. This is despiteknowing that the Government has yet to agreesensible payment arrangements at all, let alone forthe extra work involved as a result of the CriminalJustice Act 2003 and the procedural reforms. I amhopeful that Andy Hall, Q.C. will shortly find asolution for ‘cracks’and guilties. And I hope thatthe same will happen for the new Pleas andDirections hearings ("PCMHs").

In the meantime, the Mess chairmen and I arecontacting all resident judges to let them know ofthe difficulties the Bar finds itself in because thereis not yet a payment arrangement in place.

Spring means negotiationsEach spring brings focus to a round of discussionswith the Government. This year my concern isabout arrangements for ‘cracks’ and guilty pleas,the graduated fee scheme (under-10-day cases

particularly), and the extra workcaused by the CJA 2003. I wantto encourage all members ofthe Circuit to continue toachieve the highest standards.This is the way to ensure thatthe Bar does its best for itsclients while beating offcompetition from the CPS anddefence solicitors who want togive more work to Higher CourtAdvocates. I know that theshort-sighted parsimony drivenby Treasury officials isdispiriting to circuiteers who

have bills to pay and not enough fee income to paythem. The problem is at its most acute forpractitioners in London and the South East. I amconvinced, however, that if we carry on providingthe level of service which we always have, we willhelp our negotiating position, and of course, makeourselves indispensable to those instructing us.Criminal graduated fees have been "undeemed". Ifa fee is not a proper one then a barrister is notobliged to accept the brief. The higher ourstandards, the more marketable we are (forexample in regulatory work), and eventually, theCPS and defence solicitors will want to instruct thebest advocates for the job at a sensible fee.

Whenever I can, I speak about the skills of theBar in prosecuting and defending cases such asburglary and offences of violence, and which mostdirectly concern the public. With a general electionapproaching the Bar needs to make its voice heardas an essential and highly skilled part of ourcriminal justice system without which society willbe immeasurably the poorer. Our argument hasnot been helped by the distraction caused by thecollapse of the Jubilee Line case and the drain onpublic funds caused by it. The demise of the caseis front page news in a way in which the underlyingalleged corruption never was. An attack upon anelderly lady by a mindless robber is also, justifiably,front page news, but so should be the absurdly lowrate of pay for the barrister who prosecutes ordefends those cases before the court. The legalarguments involved in such a case are, particularlywith the Criminal Justice Act 2003 in force, likely tobe as difficult and complex as those involved in a

long fraud. It is this part of the Bar which needsand deserves the particular attention of theCircuit’s leadership. We must again forcefully arguefor jury trial in the coming months, and for properfunding for those involved in what most concernssociety: cases which have an impact on our dailylives.

The Circuit structureThe scale and the size of the South Eastern Circuitbrings real advantage for the Bar, particularly withthe problems which we face in fees, funding andretention, but without any sense of loss ofindividual identity or support from one’scolleagues. We have a "federal" structure. EachCircuit Mess is separately constituted and hasrepresentatives on the Circuit Committee. EachMess is itself quite large: when the Kent Bar Messholds its annual dinner around 150 people dinetogether. The Circuit Messes therefore provide acollegiate "grouping" for practitioners whoregularly appear in particular Circuit courts.

Speaking as a CircuitIf each Mess through its committee discusses theissues which matter to the Bar, and feeds its viewsinto the Circuit Committee, it is possible to havegrass roots "feedback" at Circuit level quickly,efficiently, and cogently expressed. Because eacharea representative is able to hear the views of theother area representatives it is possible for theSouth Eastern Circuit to express a firm view, e.g.,about public funding, for barristers practisingacross a huge geographical region. For example,last year, during the VHCC crisis, our Committeewas able to gauge very quickly what was thestrength of feeling. As Leader, I could let theChairman of the Bar and the fee negotiation teamknow of the views of the Circuit. I could also asksenior practitioners to heed the call from theChairman of the Bar, during the time whenindividuals were refusing to sign contracts, toprevent any defendant suffering by appearing probono. The South East (and London in particular),has the highest cost of living, and therefore,relatively, the meanest rate of pay for those doingpublicly funded work.

If the Government does not come forward witha sensible offer in the near future, I expect thesame strength of feeling will be expressed byindividuals around the whole Circuit.

Timothy Dutton, Q.C.

Leader’s ColumnAs I write this, the wintry, "lion" part of March has transformed itself into a beautifulspring. I am looking forward to visits around the Circuit to see the troops: April inMaidstone and Lewes, and 10 June in Norfolk. The uplifting mood created by the change inseason makes me want to start this column with positive news.


The Circui teer

The Crown Court at Middlesex Guildhall might bedismissed as a minor neighbour to the ‘greats’ ofthe Houses of Parliament and Westminster Abbey.Its architect, the Dundee Scot, James SivewrightGibson, described the site as "one of the finest inLondon" and for it he conceived a "dainty piece ofornament" as he wrote in the pamphletaccompanying the ceremony for the formal openingby HRH Prince Arthur, Duke of Connaught inDecember 1913. Gibson provided a unique ArtNouveau Gothic design, for a building of qualitywhich preserved its own individuality.

Steeped in historyThe "Broad Sanctuary" address gives a clue tosome intriguing history. In the eighteenth century,it was the site of Westminster Market but longbefore that it was occupied by the old sanctuarybuilding constructed, in the precincts of the Abbey,"by the benevolence" of Edward the Confessor. Soas long as a criminal or debtor managed to reachsanctuary here he was safe from arrest. Edward IIIconstructed a belfry (later the 3 Tuns Tavern) tohouse three great bells rung on royal ceremonialoccasions whose "ringings sowered all the drinkein the town". Edward V was born in SanctuaryTower, while his mother, Elizabeth Woodville, tookrefuge from the forces of Henry VI. The Queenagain took sanctuary, with her younger son Richard,but no sanctuary could save the brothers from theirfate in The Tower of London.

In 1782, Middlesex Sessions began to sit in afine building, financed by the Duke ofNorthumberland, in distant Clerkenwell. The firstGuildhall for the Westminster justices was built onthe Parliament Square site in 1809 by Samuel PepysCockerell, the "Liberty of Westminster" fallingwithin the County of Middlesex. After the LocalGovernment Act 1888, the Westminster justicesbecame responsible to the new County of London.As a sop to Middlesex’s reduced status, and uponpayment of £10,000, Clerkenwell was surrenderedand the Guildhall site handed over to the Middlesexjustices and County Council. F.H. Pownall was calledupon to add two stories to Cockerell’s building toaccommodate both the justices and the countyoffices, but this was soon inadequate. The buildingwas demolished in 1911, along with the remains ofthe ancient sanctuary vault (then the court cells)

and the support of the medieval tower.

A new buildingThe new Middlesex Guildhall gave physicalexpression to Middlesex County history. In it werehung portraits of the great men: the first Duke ofNorthumberland, Lord Lieutenant of the County(magnificent full-lengths by Reynolds andGainsborough), Baptist Hicks (probably by PaulSomer); and two portraits of the blind Sir JohnFielding, magistrate, prison reformer andMiddlesex justice from 1754-1780. There is alsosilver and other objets d’art, not to mention theMiddlesex Regiment War Memorial by RichardGoulden of 1925.

Architecturally, Gibson articulates the compactbrown Portland stone exterior of MiddlesexGuildhall by using an essentially originalcombination of Gothic forms and motifs: thesymbolic and picturesque tower together with theornamented attic windows enliven the skyline whilethe main doorway and windows above areembraced by unusual segmental arches supportingArt Nouveau/Tudorbethan scale friezes. These arevery fine and detailed, which are characteristics ofthe building as a whole. The sculptural programmewas carved by the Italian Carlo Magnoni, butdesigned by Henry Charles Fehr (1867-1940). Bornin Forest Hill but descended from a President ofthe Swiss Republic, Fehr was a prodigy who firstexhibited at the Royal Academy at the age of 20. Hewas admired by Lord Leighton and Sir John EverettMillais. His bronze, Perseus and Andromeda(1893), prominently adorns the steps of TateBritain. The Guildhall frieze depicts the granting ofMagna Carta by King John, Henry III granting acharter to the Abbey of Westminster, the Great Hallat Hampton Court and Lady Jane Grey accepting theCrown of England (Lady Jane’s father in law was thethen Duke of Northumberland). Between thescenes are the statues of "Justice" and "Prudence".To me, the delight of the Guildhall exterior is thesmall humorous gargoyle-like half figures who lookfrom above and into the many windows; quaint,imaginative and attractive, they repay closescrutiny.

The decorative schemeAll the ornamental schemes and fittings were

designed or chosen by the architect. It is the ArtNouveau unity that gives rise to the uniqueness ofthe building’s style – Gothic planning was ‘additive’but Gibson subjugates Gothic detail to the ArtNouveau whole. At the same time, he was modernenough to use steel framing to support the roof ofthe council chamber (now court 3) and steeltrusses to hold the ceiling, which looks like atimber hammer beam supported on corbelscovered by finely carved angels. In the chamber, thehandsome, carved-oak bench ends, designed andexecuted by Fehr, are portraits of the Kings andQueens of England. The fine panelling, here andelsewhere, was undertaken by the big Glasgow firmof Wylie and Lochhead, who fitted out the shipswhich were built on the Clyde.

There is an unusual broad, curving ante-chamber, with commemorative stained glasswindows, which is reached by a semi-circular mainstaircase in an open cage with a flamboyant vaultedtop which rises from the grand entrance hall below.The latter houses the Middlesex trophies, a bust ofEdward VII by P. Bryant Baker and the illuminatedpanels commemorating the unique use of courtsone and two, during World War II, by Belgian, Dutch,Polish, Greek and Norwegian Courts dealing withmilitary and maritime offences committed byforeign nationals.

Like the ceiling of the Council Chamber, theelaborate fan-vaulting of Court 1 is also a tease. Formany years the resident judge feared a wrongdecision might bring down on his head a proverbialton of bricks (or weighty stone) while in fact all hewould have suffered would have been a mightyshower of Gilbert Seale & Sons wonderfuldecorative plaster – most of the ‘stonework’ in thebuilding is in fact plaster. Courts 1 and 2, both ofwhich extend through two floors in height aredesigned for ease of communication and toenhance a clear definition of roles: the rooms aredominated by the raised bench for the judges,while the jury box, witness stand and dock are atdifferent levels. Gravitas is further enforced by theelaborate tracery windows fitted with stained glasswhich in turn are complemented by attention to thesmallest details of the door locks and furniture(here as throughout the building). Everything wassupplied by the leading makers of the day: stainedglass from Abbotts, furniture from Schoolbred,

Middlesex Guildhall:Crown Court or Supreme Court?Even before the Constitutional Reform Bill, senior members of the judiciary talked aboutturning the Law Lords into a Supreme Court, housed in a building of suitable dignity incentral London. While the Bill was going through its Parliamentary stages, the LordChancellor announced that the building would be Middlesex Guildhall, to be revamped ata cost of £30 million, with a further £15 million earmarked to relocate the existing crowncourt work. While the battleground shifts to obtaining planning consent from EnglishHeritage, art historian Karen Evans, whose husband, HHJ Fabyn Evans is the presidingjudge at Middlesex Guildhall, reminds us of the building we still enjoy.

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ironmongery and fittings from Jas. Gibson, not tomention the celebrated Art Nouveaux light fittingsand iridescent green/blue tiling found throughoutthe building. The overall cost was over £111,000.Gibson did not however shun expediency: ashortage of appropriate heraldic devices promptedhim to request the council to circulate theMiddlesex sheriffs, and the chairman and deputychairman of the standing Joint Committee for

copies of their coats-of-arms.Like all buildings Middlesex Guildhall had

initial teething troubles: cells could be openedwith old keys or nails (whereas in the Library therewere 19 keys, one for each bookcase), the frontdoor did not shut and workers in Room 48 had tosuffer swollen feet and an unpleasant smell fromthe linoleum paste as the room was situatedimmediately above the boiler. But the building has

always been greatly valued and its integrity admiredby those who have worked in it over the past 90years. Indeed during the 1985-7 restoration andmodernisation the booklet produced by the CourtService states, "clearly the original courtrooms andcouncil chamber had to remain unaltered". Let ushope that present and future generations willcontinue to care for and respect this unique anddynamic Crown Court building.

5The Circui teer

The Criminal Procedure Rules:A Culture ChangeLord Woolf ’s tenure as Master of the Rolls left behind the legacy of the‘Woolf reforms’, the new Civil Procedure Rules which revolutionisedlitigation; at the end of his tenure as Lord Chief Justice, he is about tobequeath us the Criminal Procedure Rules, which replicates both thelanguage and the concepts of civil law. Tom Little of 9 Gough Square,Assistant Junior of the Circuit and a member of the Rules Committee,gives us a preview of what is in store.

The Criminal Procedure Rules 2005 ["Crim PR"]come in to force on 4th April 2005. Some membersof the Bar and many solicitors are blissfullyunaware of their existence and of their potentialimpact.

The Crim PR consolidate in one document, andfor the first time, all of the rules governing criminalpractice and procedure in the magistrates’ courts,crown courts, and the Court of Appeal. Previously,the rules were scattered amongst numerouspieces of secondary legislation, most, if not all ofwhich, had been drafted with no reference to theother rules. Over time the Rules Committee willseek to simplify the existing rules and to changesome of the language, in order to make them bothsimple and simply expressed.

However, the Crim PR do more than simplyconsolidate existing Rules. There are twosignificant parts which are new and which seek toinstill a culture change in those who practice in thecriminal courts. The first is the overriding objectiveand the second is active case management.

Overriding Objective Part 1.1(1) of the Crim PR states "The overridingobjective of this new code is that criminal cases bedealt with justly". This is laudable anduncontroversial. The Crim PR then sets out a seriesof illustrations of how to deal with a case justly. Twoof those illustrations are worthy of note:(A) "dealing with the case efficiently and

expeditiously"(B) "dealing with the case in ways that take into

account – (i) the gravity of the offence alleged, (ii) the complexity of what is in issue, (iii) the severity of the consequences for the

defendant and others affected, and (iv) the needs of other cases."

This therefore introduces the concept ofproportionality. It will be interesting to see how farthis is used by judges to reduce the scale and scopeof some prosecution cases.

The Crim PR goes on to state that the"participants" in a criminal case must further theoverriding objective. This duty is wide. It relatesnot just to the parties but to participants who must"prepare and conduct the case in accordance withthe overriding objective". Part 1.2 of the Crim PRalso introduces a requirement on the participantsto "at once inform the court and all parties of anysignificant failure ….. to take any procedural steprequired by these Rules, any practice direction orany direction of the Court". It is hoped that this"snitching" provision will not be commonplace. Thefailure must be "significant" but it will beinteresting to see how this develops in practice. Aswe all know it is a very rare case that gets fromcharge to trial with both the prosecution and thedefence complying with every direction on time.

Case ManagementPart 3 of the Crim PR requires the Court to "furtherthe overriding objective by actively managingcases". A number of illustrations of how the Courtwill actively manage cases are set out in the CrimPR. The important requirements to consider are:– "the early identification of the real issues" – "ensuring that evidence, whether disputed or

not, is presented in the shortest and clearestway"

- "encouraging the participants to cooperate inthe progression of the case". Focused and active case management with a

desire to shorten cases and encouragecooperation will represent a culture change formany who practice in the criminal courts.

Active case management brings with it the

requirement for greater ‘front loading’ of work. Itwill be necessary to justify which witnesses willattend trial and for the evidence to be reduced tothat which is relevant to the real issue(s). Thecurrent fee regime in the crown court is not suitedto such a system of front loading nor to the newPDHs which are called ‘Plea and Case ManagementHearings’ [‘PCMH’s’]. Negotiations with theGovernment on this very question are ongoing.

Part 3 of the Crim PR also requires (unless thecourt otherwise directs) that the court, theprosecution and the defence have a CaseProgression Officer. He or she must monitorcompliance with directions, keep the courtinformed of the progress of the case and becontactable about the case. This will require thosewho instruct us, whether for the prosecution or forthe defence, to alter their practices. As far asactive case management is concerned, the buck willstop with the Case Progression Officers.

It is too early to say what the prospects ofsuccess will be for the Crim PR. We all know thatthere are so many external factors and variableswhich ensure that the criminal justice system doesnot run like clockwork. However, well prepared andefficient trials must be a sensible aim. At the timeof writing this article the Case Management formsand an amended Practice Direction are beingfinalised.

The Crim PR, the case management forms andthe Amended Practice Direction will be on the DCAwebsite (www.dca.gov.uk) shortly before 4th April2005.

Members of the Circuit will need to be ready.Although there will be pilot courts, the Rules willapply across the Circuit from 4th April 2005, withmany judges wielding the active case managementstick. Enjoy!


The Circui teer 6

Death Row and DebutantesMax Hardy, pupil in Hollis Whiteman chambers, went to New Orleanswith a warning and came home a wiser man.

Even before I flew out to New Orleans to work ondeath row appeals I had been warned that thesubject of capital punishment provokesungovernable passions in the hearts of manySoutherners. Under no circumstances should onediscuss the matter with strangers in bars. It wasthus inevitable that within my first two days I foundmyself sitting alongside a very ‘well-served’ fellow,who forcefully enquired what I was doing in NewOrleans. I replied sotto voce:

‘I’m working on death row appeals.’He looked aghast, then disgusted and said, whilstrecoiling from me:

‘Wow man, that’s heavy stuff. So what exactlyare these death row pills then?’This sort of linguistic catastrophe was to becomecommonplace.

An eye-openerMy job involved working alongside an attorneycalled Nick Trenticosta who specialises in capitalpost-conviction appeals, that is, he representsdeath row inmates who have been convicted andlost their first automatic appeal, which is normallyconducted by the trial lawyer. The post-convictionlawyer will operate as a solicitor, a barrister and aninvestigator all at the same time, trying to find thenew evidence which can now be adduced. Thispartly accounts for why it is that inmates spend somuch time on death row: people like Nick have todevote a lot of time and energy trying to unearthnew evidence and to force disclosure from theprosecution.

Though I was familiar with the gross injusticesof the U.S. criminal trial process from books, films,articles and lectures none matched seeing themfirst hand. Reading judgments holding convictionssafe in the face of incontrovertible evidence ofinnocence is a deeply disquieting experience andgoes some way to explain why death penalty appeallawyers work with the fervour of zealots. Our officewas very small and situated in the basement of aBaptist church located on smart St. Charles Avenue.It is a street lined with trees garlanded withSpanish moss, and splendid whitewashedmansions with rocking chairs on the porches and

Stars and Stripes hanging heavy in the humid air.

The Ortiz allegationI was immediately put to work on the case ofManuel Ortiz. He had been on death row for sometwelve years, since being convicted of contractingthe murder of his wife Tracie. The alleged motivewas to collect on her life insurance policy whichhad recently been increased in cover to $900,000.She had been killed in her home along with a friendwho was unfortunately with her that day. Tracie hadbeen shot and the other woman had been stabbedwhich demonstrated that two people had to havebeen involved. There was no sign of forced entryand so either Tracie had admitted her killer into thehouse or that person held a key. Nobody has everbeen convicted of the murders. At Ortiz’s trial theprosecution star witness was a man called CarlosSaavedra, a former friend who gave evidence thatOrtiz asked him to kill someone for money.

Apparently Ortiz did not give the future victim’sname, but he described her as black, athletic andliving in the suburb of Kenner. Saavedra tipped offthe FBI, who were interested but failed to take anyreal action. Some weeks later Saavedra returnedand said that the killing was not going to go ahead.A few weeks later Tracie and her friend were dead.

An alibi, but . . .The gun used in the killing has never beenrecovered. However the knife that was used wasfound a few days later in a derelict lot near thehouse. It was a Gerber combat knife, of a varietyused by the military. Half the blade was serrated.Evidence was called that Ortiz had bought in thepreceding months a Gerber combat knife. Headmitted this, but claimed that one he bought didnot have a serrated edge.

The killings took place when Ortiz was in ElSalvador. He was informed of his wife’s death byhis brother-in-law. He was subsequently contactedby a police officer in a recorded conversation. Ortizdid not say that he already knew, and his tone wasflat. He said that he would return to the UnitedStates once he had resolved his business in El

Salvador. His girlfriend there had just given birth.Upon his return to Miami, on a false passport, Ortizwas arrested.

Even if Ortiz was innocent it was not difficult tosee why he was convicted. However it rapidlybecame apparent that things were a great dealmore complicated than they appeared. First CarlosSaavedra could hardly have been described as awell intentioned member of the public. He hadbeen an active and leading member of theHonduran hit squads which in the 1980s killeddissidents and students that had the courage tospeak out against the regime. This fact was neverbrought to the jury’s attention nor the fact thatSaavedra was effectively a gangster who had beencaught by his wife in the act of raping theirdaughter.

A dying declarationNick’s extremely brave Latino wife Susanna hadmade a number of reconnaissance trips to ElSalvador in order to research the background to thekillings. There she met Carlos Saavedra who wason his deathbed. He made a statement to her thathe was the killer. My first task therefore was toestablish under which hearsay exception thestatement might be admissible. In addition, Nickasked me to provide him with a historical overview.A task that would have been utterly straightforwardin the Inns’ libraries was not so easilyaccomplished in the Loyola University Law Librarywhere my enquiries were greeted with bafflementby the well meaning but rather ineffectual ladiesthere who suggested I try Google.

Prior to the Criminal Justice Act 2003, therewas the exception pertaining to dying declarations.Unfortunately they must be made by the victim andnot by the perpetrator. Of more promise was theexception that extended to statements againstinterest, but that requires someone who is stillalive. Saavedra’s death meant that he would neverbe able to give evidence. It was hard to see thecourt attaching much weight to his confession.

Also working in our office was John Thompsonwho had the previous year been released fromdeath row after 18 years when it was discoveredthat his prosecutor had deliberately secretedblood evidence taken from the crime scene thatutterly demonstrated that he was not theperpetrator. He was weeks away from hisexecution and had exhausted all his appeals. Theman who put him on death row had beenphotographed for a magazine standing behind adesk on which was a model of an electric chair.Stuck on the model were the faces of six black menagainst whom he had secured death sentences.Five of them have subsequently been exonerated

Max Hardy with John Thompson and John, Jr.

Max and fellow intern, James Baxter


7The Circui teer

and freed. No misconduct proceedings have beenbrought against the prosecutor; he has not evenbeen censured.

Thompson is a remarkable individual who hasavoided the hate fuelled self-destructiveness thatoften makes it impossible for exonerees toreintegrate back into society. Befriending him wasundoubtedly the best thing that happened to me inAmerica. He introduced me to a side of NewOrleans which even many locals never see onaccount of the de facto apartheid that exists there.I went with him to a Second Line Parade. Thesetake place on Saturdays in the black parts of townand are organised by Social and Pleasure clubs.These are jazz bands with liveried dancers whofollow behind and twirl their canes andornamented parasols. Behind them follows all thelocal community (the second line), also dancing tothe music. Thompson told me that until recentlythey were very dangerous as the crush of peoplemade them prime locations for drug dealing andMontagu/Capulet style revenge killings. The routesof the marches meander through some of theroughest and most dilapidated parts of town that atany other time are no go areas, even for the police.

Tonight at eight thirtyIf the Second Line Parade was the most

exuberantly joyful event I attended in New Orleansthen Le Debut des Jeunes Filles de la NouvelleOrleans was definitely the most bizarre. I waspresent at ‘Half after eight of the clock’ in theImperial Ballroom of the Fairmont Hotel for thefirst debutante presentation of the season. I wasescorting a very amusing girl called Brittney Beanwho, as a returning deb, was definitely a member ofNew Orleans’ jeunesse d’oree.

The only catch was the dress code, which waswhite linen suit with black shoes and belt. I hadbrought none of these things, and so was obliged to

rent a white tuxedo instead. When the seamstresshad finished her alterations I discovered that onesleeve was three inches longer than the other, thatthe trousers were clown sized and that the bow tiewas the sort of thing a 4-year old would wear at afootballer’s wedding. Thus unhappily apparelled Iapproached the hotel. I could see some 200 of NewOrleans’ brightest and best flowing our way.

As I sat and admired the sea of white andcrinoline Brittney told me the form. The ballroomwas split in two with circular tables on either side.In the middle of the room was a runway with a bandat one end and a stage at the other. Half way downthere were twenty chairs on either side where themothers of the girls being presented sat and then alittle further on was a small dais.

Quite soon, the lights were dimmed and theband played the Star Spangled Banner. Then fouryoung bucks appeared in their white suits wearingboaters that, for some unexplained reason, had

around them the hatband of the Brigade of Guards.They stood in a line and were presented by thecompere whereupon they stepped forward, doffedtheir hats and sauntered down the length of therunway to take their places.

At this point the first deb was announced. Adainty little meringue appeared in the spotlight onthe arm of a grizzled patrician. The presenterannounced: ‘Miss Katherine Charbonnet Flower.Daughter of Mr and Mrs Richard CharbonnetFlower will be presented by her fathurrr’. The bandstruck up My Girl and father and daughterprocessed down the runway looking pleased aspunch. Midway, the girl curtsied to her mother,climbed onto the little dais and bobbed to thewhole room. She was then handed over to one ofthe blades in boaters and placed on the stage. Thisprocedure was repeated about 40 times with adifferent tune for each girl until the blushing flowerof Louisiana’s maidenhood was arrayed splendidlyfor our delectation. According to Brittney manylessons with a dipsomaniac etiquette instructorwent into this fetching spectacle of choreographedloveliness. Then all the girls danced with theirfathers and it was free for all at the bar again.

Not a place to stay soberFinding myself in a glittering ballroom by night anddeath row by day made New Orleans seemseventually rather unreal. The unbridgeable gulfthat separates the rich and the poor, and theimpenetrable barrier to positive change, onlyperpetuate the monstrous things that are done inthe name of justice in Louisiana. It accounts forthe heavy melancholy that pervades New Orleans. Ihave never seen such a hard drinking city and giventhe unpalatable truths that need to be addressed Icould see why so many were happy to live their livesin an alcohol induced stupor.

The other side of New Orleans

What Happened NextMax Hardy’s successor in New Orleans was Aaron Watkins. A MiddleTemple student who is between doing the CPE and starting the BVCcourses, he manifested his commitment to human rights and civil libertiesby ‘picking up the baton’ when Max came home. He continues the sagaof the appellant, Mr. Ortiz

I followed on from Max as the intern at the Centerfor Equal Justice. My arrival in late September 2004was set to coincide with the beginning of animportant evidentiary hearing for Ortiz. Since thefailure of his automatic appeal after sentencingtwelve years ago, he had not been back inside acourtroom. This long anticipated opportunity wouldallow him to present his three grounds that theconviction had been wrong: outright innocence,prosecutorial misconduct, and prosecutorialconflict of interest. I had scarcely arrived, however,when the threat of Hurricane Ivan intervened, to

ensure Ortiz was kept waiting even longer: Thehearing was postponed until December.

Outright innocence?The claim of ‘outright innocence’ rested largely onthe evidence of Carlos Saavedra’s wife. Ortiz’slawyers, Nick Trenticosta and Susanna Herrero,had worked hard to locate her in Honduras. Theyeventually managed to persuade her to come toNew Orleans to testify in person. This was agamble. Whilst oral testimony might be morecompelling, it would also be subject to cross-

examination.The prosecutorial misconduct and conflict of

interest claims focused on the actions of anotorious prosecutor (and later judge) namedRonald Bodenheimer. In addition to seriousmisconduct at trial involving the suppression ofexculpatory evidence, Ortiz was alleging thatBodenheimer had concurrently represented thevictim’s family in a civil matter, the success of whichdepended on the outcome of Ortiz’s murder trial.


The Circui teer 8

Prosecuting without mercyAs a prosecutor Bodenheimer operated withoutempathy or compassion. This alone does notdistinguish him from many of Louisiana’sprosecutors. However, the proud display in hischambers of a plaque shaped like a lethal injectionsyringe and carrying the inscription ‘The Big PrickAward’, surely puts him among the most egregious.It was gratifying to learn that in April 2003Bodenheimer received another title to add to hisalready impressive list: he is now ‘inmate 27966-034’, serving a forty-six month sentence on federalracketeering charges.

Bodenheimer planned to testify at the hearing.At one stage he spoke to Nick and Susanna, andexplained his unsurprisingly perverse reason: Heconsidered his job to be much like Nick’s. It’s allabout saving lives. By ensuring men like Ortiz areoff the streets he was saving future victims[Editor’s note: a recent episode of ‘Judge JohnDeed’ proceeded on the same basis: a prisonermurders a fellow inmate whom he is believes is apaedeophile, his Q.C. tells the jury that he wasacting in defence of potentially future victims. Thejury acquitted] In the week preceding the hearingNick learned that Bodenheimer had changed hismind. His lawyer had advised him to plead the FifthAmendment, which confers the right against self-incrimination. What the potential crime was, we didnot know. All we were told was that testifying couldopen the door to a further Federal prosecution.

If Bodenheimer was not going to testify thenOrtiz’s team faced a number of pressing questions:Should he be required to attend court to plead theFifth in person? Could he plead the Fifth to somequestions but not all? What was the degree to whichhe had to persuade the judge there was some

possibility of self-incrimination? And, mostimportantly, how was the judge to weigh upBodenheimer’s right to the Fifth against Ortiz’sconstitutional right to due process? Would Ortiz beable to ask the court to draw adverse inferencesfrom Bodenheimer’s refusal to answer questions?This ‘last-minute’ change of mind had come out ofleft field, and it meant substantial reassessment.

A surprise witnessUltimately our concerns were academic. On thethird day of the hearing inmate 27966-034 strolledinto court in civilian clothes (a distinct contrast toOrtiz in his orange jump-suit and shackles) amidstconsiderable media interest. Bodenheimer’slawyer announced that, against legal advice, hisclient would waive his right to the Fifth, and answerquestions after all. On reflection, Bodenheimer’sappearance should not have come as a surprise.The opportunity to spar in a court he once virtuallyran was too good to pass up.

Examining Bodenheimer proved hard work.When he saw the opportunity to score, he wasforthcoming, almost long-winded. Yet when hesensed difficulty or danger he repeatedly retreatedto the excuse that Ortiz’s trial was too long ago toremember specifics. Of course he could say,without hesitation, what his usual by-the-bookpractices would have been. Bodenheimer foughthis corner doggedly. He conceded nothing, not evenembarrassment for his own change incircumstances or the excruciating situation inwhich he found himself.

Miss Sanchez speaks outThere could not have been a starker contrast toBodenheimer than Saavedra’s wife. ‘Miss Sanchez’

was much younger than her late husband. She hadbecome involved with him as a student, quite sometime after his work for the Honduran government,which consisted of torturing and murdering theregime’s political opponents. She did not speak asingle word of English. She said she practised as a‘public’ lawyer in Honduras representing the poor.With considerable credibility she claimed to beinterested in justice and the truth. There wereobvious vulnerabilities which were exploited incross-examination, and rightly so. Mostsignificantly, why had this loyalty to the truth hadnot prompted her to come forward sooner? But theone unalterable fact was that she had nothing togain by turning up in New Orleans to set the recordstraight. Indeed stirring up the past and speaking illof the deceased Saavedra, whom she clearly loved,in order to speak out for a man she did not evenknow, was more likely to endanger her back athome.

Throughout the hearing Ortiz participatedfully. He sat alongside Nick, and frequently passedhim pieces of paper with questions he wanted thewitnesses to answer – questions which must havetormented him for years. I doubt the answersbrought him any real comfort.

The appellant waitsAt the time of writing, Ortiz still awaits the

decision. It is impossible to predict what theoutcome will be, or even precisely when judgementwill be given. From an outsider’s perspective itseems clear that the prosecutorial conflict aloneshould be enough to secure a new trial. Thebriefest flirtation with Louisiana’s criminal justicesystem however, quickly teaches one to stifle suchreasonable expectations.

SOUTH EASTERN CIRCUIT FOOTBALL

The Circuit is looking to form a football team with the possible intention of playing

at the World Football Cup of Lawyers in Turkey between 19th May and 29th May 2006.

Would any member of the Circuit who would be interested in playing football

please contact the Assistant Junior Tom Little at [email protected]

or on 020 7832 0500.


The Circui teer

Hampel Goes to WarsawWarsaw in February is not the obvious winter weekend destination. Fortunately, aPresentation of English Advocacy, the first major event since the twinning of the SouthEastern Circuit and the Warsaw Bar largely took place indoors.

Five of us travelled out: The Leader, Tim Dutton,Q.C., Sappho Dias, Stephanie Farrimond, IainMorley and myself. It was Iain who made it allpossible: he dealt with the arrangements, wrotethe case study and provided an advance copy of hisupcoming book, The Devil’s Advocate for the 24Polish trainees.

The plan for the Saturday was to present amock trial, after which our hosts would be given theopportunity to practise examination in chief, crossexamination and closing speeches. Iain realisedthough that we could not simply parachute anEnglish court into central Warsaw. We needed tohave some idea of the context in which the Polishlawyers operate.

The Polish courtsOn the Friday, he and I spent a fascinating

morning, in the company of Bartlomiej (‘Bartek’)Jankowski, an advocate with CMS CameronMcKenna in Warsaw. He took time off from thebiggest fraud trial in Polish history, to show us thelaw courts on ’Solidarity Street’ (Al. Solidarnosci)

The court house is vast. Built in the 1930s in astyle of moderne classicism with cast irontorcheres outside, there are several courtyards,endless corridors, and dozens if not hundreds ofcourt rooms. The entrance hall stretches the widthof the building, with dozens of fluted columns andchunky, marble staircases. Criminal, family and civilcases are all heard here. Members of the publicmay attend trials, though our arrival in a courtroomwas treated as an event requiring someexplanation. The building is undergoing massiverestoration which includes repainting the sludgebrown walls of the communist era a more cheerfullight green. The courts have no set sitting hours:court days are whatever the judge decrees. They

begin about 9.30; they adjourn for lunch whenever;Bartek has on occasion been there until 8 or 9 atnight. We were there on a day when most casesfinished by 1.

Polish law students, like many of theircontinental colleagues, have a choice betweenthree streams: the judiciary, prosecution andindependent practice. As a result they find verycurious the fact that an English barrister can,successively, prosecute, defend, and sit as aRecorder, albeit in different cases, but perhaps allat the same court building.

The most striking aspect of the criminal courtsis the lack of juries. Depending on the seriousnessof the charge, the tribunal consists either of a

judge and two full time assessors, or two judgesand three assessors. They sit at a long table. Totheir right sits the prosecutor. To their left is adouble row of benches. The front row is foradvocates; the back row is for defendants. There isno dock but police are present if a defendant is incustody. The witness stand is in the middle.Advocates sit when asking questions but standwhen addressing the court. Everyone wears agown, with long, pleated sleeves, a bib and a widecollar. The presiding judge also wears a gold chainwith the Polish eagle. The bib and trimming arepurple for the bench, red for the prosecution,green for defence advocates and blue for ‘legaladvisors’, who do civil but not criminal cases. Thelaws and procedure are codified and are containedin a red book which is considerably smaller thanArchbold.

The judge acts both in an inquisitorial andadjudicating role. The assessors, who aresometimes referred to as ‘the vases’, do not takean active part in court. They did not ask questions

and they took no notes. We did not see any audiorecording equipment. In two courts, a typist at alaptop kept a record of what the judge indicatedshould be the recorded evidence; in a third court,she was merely armed with a biro.

We saw four fascinating cases. The mostbizarre was a local cause celebre which has beenrunning, on and off, since 1997. The allegation isthat the defendant, who was employed in afashionable shop, shot and killed her employer andseriously wounded his wife. Although she wasknown to them, the defence was mistaken identity.This has resulted in two acquittals to date, both ofwhich have been overturned on appeal. At thisthird trial, the smartly dressed young defendantmingled in the building with the surviving victim,who, we were told, ‘supports the prosecution’ byattending the hearing with her own lawyer.

The one civil case was conducted by a judgealone. The expert witness was largely questionedby the judge, with questions by the advocates, oneof whom had to be shushed when he intervened atthe wrong moment. It was a reminder thatbehaviour in court is universal.

The most dramatic criminal case concernedfour young men who ran a simple scam: theyadvertised for sale a non-existent car and thenrobbed the arriving cash purchasers of theirmoney. This case illustrated the role of the‘protocol’ or what we might call a deposition whichis taken from witnesses and defendants, the latterof whom have the assistance of a lawyer. Evidencein chief, even for police officers, is done withoutrelying on memory refreshing documents. Welater amazed our Polish colleagues by explainingthat English police officers not only use notes incourt but have the benefit of a skill known as‘shared recollection’. In Poland, if the witnessgives inconsistent evidence or leaves somethingout, the judge may read the protocol to the witnessand ask him or her if they would now confirm what

Welcome from Professor Kryszynski with Bartek Jankowski

It’s a result! Triumphant defence counselStephanie Farrimond and her acquitted client

9


The Circui teer 10

it contains. Crucially, advocates are not allowed toask ‘suggestive questions’ (i.e., cross examine byputting an alternative version of events) but thejudge can. Defendants are never sworn beforegiving their evidence because, we were told, theyhave a ‘right to lie’. Witnesses are not sworn eitheralthough they may be, with dramatic effect, duringthe course of the evidence if their credibility isquestioned.

We saw the first defendant in the robberyscam give evidence. He stood but did not go to thewitness stand. The judge read to him his protocol(the original, which is handwritten) as his evidencediffered from it. He explained (Bartek translatedfor us) that he had said all that at the time but itwas wrong; he had decided to make up a story asthe truth could not be sustained. ‘I didn’t know Icould change my version; no one would believe me’,So far, so familiar to English barristers. It was thejudge though who went for the jugular in queryingthis excuse. It will be her task, in due course, todecide whether or not she believes the witness shehas herself demolished. Defendants incidentallyare unable to plead guilty: they can admit what theyhad done but it is for the court to decide if thismakes them guilty.

The second defendant then stood. He wasasked if he understood the charge. He did. He wasasked if he wished to exercise his right to testify.He said that he did not. The judge then read out hisprotocol. Despite his decision not to testify thejudge proceeded to question him about it. Hisevidence was catastrophic: he had not, after all,seen the gun; the statement was rewritten by theprosecutor who took the protocol; although he hadread it afterwards he thought it would be better toleave things as they were (‘do you think it’s betterto take part in crime than to tell the truth?’ thejudge asked him); although the police told him thatthe co defendants had implicated him he did notthink of implicating them in his false confession.Judge Agnieszka Zakrzewska was one of the mostformidable cross examiners we had ever seen.

A mock trial in the EnglishstyleThe next day, the SEC team arrived at 9 a.m. at theheadquarters of the Warsaw Bar, where thetwinning ceremony had taken place last year. It is

an elegant, late nineteenth century building with aseries of handsome meeting rooms which workedvery well for our break-out sessions. We did notemerge again until 6 p.m.

There were welcomes and introductions first,from Professor Piotr Kruszynski, who is Dean of theFaculty of Criminal Procedure in the University ofWarsaw, and then from Tim Dutton, Q.C., on behalfof the Circuit. Iain Morley and Bartek introducedthe case study, and Tim explained the Hampelmethod. Iain noted the differences in trialprocedure between the two countries, havingregard to what we had seen the day before. Wethen had the mock trial in the case of Regina vPlumb. Plumb is a criminal/personal injury barristerwho is feeling the financial pinch from publiclyfunded work and no win/no fee agreements. Oneday after court he and his instructing solicitor gointo a computer shop to look at Psions. He putsone in his pocket, to see if it would fit his jacket.His clerk then rings him on his mobile to tell himthat he is not in work on Monday. Distraught, Plumbsets off for chambers, forgetting that the Psion isstill in his pocket. He is stopped outside by theofficious store detective and charged by the police.

In this case, Mr. Recorder Dutton, Q.C.,presided. Iain Morley prosecuted and StephanieFarrimond defended. Operating on a stricttimetable, we got through the case while injectingmore realism than the Poles might have realised.Playing the store detective, Sappho Dias altered animportant part of her evidence from her statement;she then blamed the discrepancy on a typing error.Playing the part of the police officer I was unable torecall the words of the caution. As the defendant Idetailed the horror of a criminal barristerdiscovering that he will probably be out of work forthe whole week. As Plumb’s instructing solicitor,Sappho tried to be helpful to the defence byunwittingly contradicting me in a crucial respect.Instructing the jury of twelve local lawyers, TimDutton told them that they must accept as true theevidence that criminal barristers are impecunious

due to the current fee system. The twelve thenretired to an adjoining room from which we couldhear gales of laughter. After the ten minutesallotted to deliberations they acquitted, 11-1.

Advocacy TrainingWe then started to ‘train’ the local lawyers inwitness handling, using the Hampel method offeedback. First came case analysis. After agenerous buffet lunch, they were further dividedinto four groups. Over the course of the afternoon,they did examination in chief, cross examination,and final speeches, with their colleagues playingthe parts of the witnesses. The entire session wasconducted in English. This was an enormousachievement on their part; I noted, further, thatthey had not only listened to the evidence in themock trial but had incorporated some of it in theirsubmissions.

Our colleagues took readily to our methods.Cross examination was the predictable problem,since they had never done it before and indeedwould not be allowed to do it. Bartek explained thathe had tried to cross examine witnesses and hadbeen stopped by the judge. Still, he assured them,it was a good case analysis tool. The one person inmy group who managed to cross examine with thefervour of Judge Zakrzewska was a young womanwho had done an LLM at Columbia University inNew York.

After the sessions there was a chance for teaand further discussion. There was much eagerinterest in what had happened that day. At the end,Professor Kruszynski presented the fiveCircuiteers with a kindly inscribed copy of FORYOUR FREEDOM AND OURS by two Americanhistorians, about the Kosciszko Squadron of Polishairmen who fought with the RAF during World WarII. Kosciuszko was one of the great Polish heroes,fighting the Russian occupation after the partitions.Professor Kruszynski reminded us that British andPoles were comrades in arms during the war andthat they are, again, in Iraq, fighting the war againstterrorism.

Afterwards we were treated to dinner atRubikon, a smart new nouvelle Italian restaurantnearby.

The hospitality we received was enormous; thegenerosity of spirit was moving. Already they spokeof coming to London to show us a demonstration ofPolish advocacy. We hope that Judge Zakrzewskawill come too.

David Wurtzel

Stephanie Farrimond teaches case analysis

The two Bars at dinner


11The Circui teer

Defending MilosevicIain Morley, of 23 Essex Street, tells us what it is like to be part of theteam helping the best represented litigant in person in legal history.

In late Sep-tember 2004,fellow circuiteerSteven Kay, Q.C.put out an emailasking for probono help ind e f e n d i n gS l o b o d a nMilosevic in TheHague. I res-ponded and was

honoured to be invited. I arrived on 4 October,spent seven days in the dizzy task of reading up thecase and then returned on 22 November for threemonths. Quite simply, this is the biggest criminaltrial in history.

The former President of Yugoslavia is chargedwith various war crimes relating to the wars in 1991-92 in Croatia, in 1991-95 in Bosnia, and in 1999 inKosovo. Each war gives rise to a separateindictment.

Three indictmentsThe Kosovo indictment consists of five counts: fourcrimes against humanity, namely deportation,forcible transfer, murder, and persecutions; andone count of murder in violation of the laws orcustoms of war contrary to the GenevaConventions. The schedules to the indictmentplead 608 identifiable murdered between 1 January1999 and 20 June 1999. The number of thosedeported is around 800,000.

The Croatia indictment alleges 32 counts:almost all the ‘crimes against humanity’ arepleaded, namely persecutions, extermination,murder, imprisonment, torture, inhumane acts, anddeportation; in addition to various breaches of theGeneva Conventions, namely extensivedestruction, wanton destruction, plunder, attackson civilian objects, deportation, religiousdestructions, willful killing and murder. Theindictment cites 715 identifiable murder victims,and those forcibly transferred as 290,000. Theindictment includes the shelling of Dubrovnik andthe murders at Vukovar Hospital.

The Bosnia indictment has 29 counts, includingtwo of genocide and complicity in genocide in themurder of 7000 Muslim men in July 1995 when theUN safe haven of Srebrenica fell to the BosnianSerbs. The remaining 27 counts plead, as in theother indictments, detailed crimes againsthumanity and offences in breach of the GenevaConventions. Aside from Srebrenica, the pleadedidentifiable murders number 7355, with forcibletransfer of 270,000. The indictment includes thesiege of Sarajevo and the shelling and sniping of

civilians we all remember from television newsreports.

In short, former President Milosevic isaccused, between 1991 and 1999, of ethnicallycleansing almost 1.4 million non-Serbs,imprisoning many in concentration camps, andmurdering at least 15,678; 7000 of whom were withgenocidal intent.

Inequality of armsThe case is being prosecuted by Geoffrey Nice,Q.C., who appears to have an army of around 70lawyers and all the western governments assistinghis gargantuan task. In stark contrast, defencefacilities are thin on the ground. There are severaltrials going on at once at The Hague, where thedefence team usually consists of a lead counseland co-counsel, with perhaps an interpreter andtwo student interns, all sharing a single room, witheight computers with all the other defence teams.In the afternoon there are often more than twentypeople and a scrum to get online. Equality of armshas been interpreted to mean equality ofcourtroom advocacy but not equality of casepreparation. In court, the prosecution will field thesame number of personnel as the defence, andthere may be the appearance of parity to theobserver, but the prosecution has far more peoplehelping in the background.

A defence team acts as both solicitor andbarrister. Before trial and during trial, the teammust employ investigators, proof witnesses, filemotions, take instructions, and press fordisclosure, which is often very late. This leads tofrantic enquiries on the ground in the Balkans withlittle time before newly disclosed witnesses arecalled. The paperwork can literally crush you. In theMilosevic case, there are tomes of academicresearch offered into evidence as exhibits. Howanyone can read all the material in one lifetime isarguable. The rules of evidence are a hybrid of theadversarial and inquisitorial styles, leading to theadmission into evidence of almost anything ofpossibly probative value. Hearsay in every formseems permissible; multiplicity of hearsay ismerely a question of weight.

A change of counselThe trial had started in February 2002, beforeJudges May (presiding) from England, Robinsonfrom Jamaica, and Kwon from South Korea. SadlyJudge May passed away in 2004 and was replaced byJudge Bonamy from Scotland, with Judge Robinsonnow presiding. Milosevic has famously insisted ondefending himself, as he does not accept theTribunal’s authority. However, the Tribunalassigned him Steven and his extremely hard-

working junior, Gillian Higgins, to be amici curiae,during the prosecution evidence. That finished inFebruary 2004. There were then six months forMilosevic to prepare for his defence.

Thereafter, his health deteriorated, and so inearly September the Tribunal elevated Steven andGill from ‘assisting the court’ to running andpresenting the entire defence. This decisioncaused great unhappiness in the Milosevic camp,where he is assisted by a team of Serb advisors. Aseries of unusual rulings then followed. Stevenbravely appealed against his own assignment, andthen quite separately applied to withdraw on thegrounds of embarrassment when the scale ofopposition from Milosevic to him becameunderstood. However, despite all the problemsargued orally by Steven and so diligently andexhaustively argued on paper by Gill, the tribunalwill not let them go. Milosevic argues he does notwant nor need them. They have argued they cannotrun his whole defence without his co-operation.The Tribunal has replied they must remain onstand-by in case there is a further deterioration inhis health, ready to take up the reins. Milosevic,thanks to Steven taking the point, is now allowed tocall his witnesses and run his case for so long as heis healthy. The situation is novel. And in fairness tothe former President, he appears to an observer tobe doing a pretty good job.

The defenceWhat can possibly be meant by a "pretty good job"given the scale of the allegations? There is nosmoking gun in which he can be shown to haveordered ethnic cleansing, murder, torture andgenocide. There is a lot of politics involved. Todistil the allegations to their core, and to be non-legal for a moment, the case seems to be this:terrible things happened on his watch, he knewmost of the relevant bad people, he might havebeen able to control them, so he must shareresponsibility. The jurisprudence at the ICTY isvast, and with each judgment it is arguable thatcrimes against humanity creep towards becomingoffences of strict liability for political leaders.There is a respectable argument that an adult canbe convicted of genocide for negligently omitting toact after the event. Some think genocide can nowrequire less mens rea than stealing a bottle ofwhisky from Tesco.

A political leader can be held responsibleunder the doctrine of command responsibility forthe genocidal acts of others if (a) he ought to haveknown what was going on, but (b) did not in factknow, and (c) the reason he did not know wasbecause he negligently failed to read a report, ornegligently refused to believe a report, and (d)

Iain Morley


The Circui teer 12

after the event, failed to try hard enough to punishthe perpetrators. The actus reus for genocide doesnot have to mean widespread ethnic murder: somesay it can in theory now mean putting an ethnicgroup in a warehouse without adequate food, waterand toilets with an intention to destroy their ethnicidentity. While no one would expect a conviction onsuch a mild factual scenario, it serves to illustratethe chief complaint among defence lawyers: thejurisprudence is in danger of becoming a "catch-all", in which minor war crimes can be elevated intomajor war crimes (if there can be such ahierarchy), and just about everyone with anyauthority has no defence.

Read the judgmentsThe judgments are fascinating. They are long anddetailed. An intelligent body of law with world-wide,far reaching consequences has been created herein the last eight years, from relatively littleprecedent. Steven Kay, along with Geoffrey Niceand indeed Joanna Korner, who prosecuted severalsignificant other cases, have been at the forefrontof this new world, from which an internationalstandard of criminal justice is emerging.Practitioners in England should keep abreast ofICTY developments, (and those at the ICTR inArusha) as they appear to be influencing ourdomestic legislation – for example, the CriminalJustice Act 2003 relaxes the rule on hearsay andrequires considerable defence disclosure, whichare twin features of ICTY court practice.

There is a further facet of the judgments whichmay be of interest: they are often written byAssistant Legal Officers and later approved by thejudges. An ALO is usually bright, and young, with apostgraduate degree. What a job! To create warcrimes jurisprudence, and get it past the judges!The draft judgments must be carefully scrutinised,but tend to follow a standard formula. Significant

differences in style and reasoning can be observedwhen reading dissenting judgments, which areinstead actively written by the judge concerned in anoticeably personal manner. A visit to the ICTYwebsite is thoroughly recommended, atwww.un.org/icty, and please read the "CelebiciCamp" judgment for an idea of the length and thescale of the new jurisprudence developing.

1600 Defence WitnessesThe Milosevic trial is currently hearing defenceevidence regarding Kosovo. The defendant isallowed 50 court days. Witnesses are limited intime. Then he will be allowed 50 days for Croatiaand 50 days for Bosnia. There have to be time limitsor the trial will never end. Initially, there were 1600defence witnesses sought. At one point Steven wasdue to proof and to call the 1600, which is thereason he needed some help from a bag-carrierlike myself. The pressure was enormous. However,once Milosevic was permitted to call them so longas he remained healthy, the pressure relented, andthe working day was reduced from a relentlesseighteen hours to what over here is a standardeleven hours with lots of coffee.

Recently we have heard from generals, andforeign ministers about the nature of the KosovoLiberation Army on the age-old theme of whetherthey were terrorists or freedom fighters, and frommany academics on the history of Serbia underOttoman Rule and throughout the twentiethcentury. Geoffrey Nice cross-examined the formerRussian Prime Minister Primakov on whether he isbiased, and Serb history professors on theaccuracy of their lifetimes’ work. It appears he hasan astonishingly wide-ranging role. To many Serbs,rightly or wrongly, it seems his case seeks notmerely to prove the individual elements of thespecific counts, but also to persuade the Tribunalto reach an unusual judgment of history, namely,

that the Serbs have been intermittently violentnationalists for over a century. There is in Belgraderegrettably a perception that the prosecution istrying the entire Serb nation. In fairness toGeoffrey, the breadth of the prosecution is aformidable achievement and some may think heought to be considered for an honorary doctorateor professorship for all the colossal historical,political, military and geographical learning he hashad to achieve in order to be able to mount theprosecution case.

The right venue?For my own part, I do wonder whether a courtoperating under the adversarial style is the rightenvironment to try so vast a subject as threedifferent wars, and to joust over historical truth. Itmay be that a more inquisitorial style could bemore efficient and accurate, as one observedrecently during the Circuit trip to Poland, anaccount of which appears in this edition.

Perhaps lost to the wider world in all the agonyand bloodshed is the tragedy for Serbia, that shewas once our proud and valued ally in two worldwars. In this context, the former President isdoing well. He often points out how theprosecution may not fully understand thecomplexity of the ethnic mix in Yugoslavia. On anumber of occasions, Geoffrey has had to retreat.But not far.

In the end, former President Milosevic faces aformidable task. He has been exceptionally wellassisted by Steven and Gill in what for them havebeen difficult circumstances, and for a non-lawyer,he is presenting an intelligent case. Thejurisprudence is tricky for him, as it would be foranyone in his position, but he fights on. The trialwill not end before 2006.

Responding to ClementiThe Bar spent most of 2004 apprehensively awaiting thereport by Sir David Clementi and which the Governmentwas likely to accept. The Bar will spend most of 2005responding to the recommendations.Stephen Hockman, Q.C., former Leader of the Circuit andnow Vice Chairman of the Bar is in a unique position toexplain what we will have to deal with Stephen Hockman, Q.C.

In July 2003, the Government invited Sir DavidClementi, Chairman of the Prudential, to carry outa review of the framework within which legalservices in this country are and should beregulated.

In March 2004, Sir David issued a ConsultationPaper, in which he suggested that there was a

need for a new regulatory body for the legalprofession. Under his so-called ‘Model A’, thepower to regulate the profession would betransferred, in its entirety, to a new legal servicesauthority with full regulatory powers. Under thealternative ‘Model B’, the right to regulate wouldremain with the profession itself, but subject to

the proviso that a professional body which wishedto continue to regulate its membership wouldhave to gather together its regulatory functionsand ensure that they were carried out separatelyfrom its representative functions (‘Model B+’).‘Regulation’ includes training, practice rules,complaints and discipline.


13The Circui teer

In December 2004, Sir David published hislong awaited Final Report. The Government hasindicated broad acceptance of his conclusions andintends to publish a White Paper in the latesummer or autumn, prior to legislation. TheGovernment is currently conducting discussionswith interested parties to assist in thepreparation of the White Paper.

In broad terms, the recommendations of theFinal Report are as follows.

Delegating regulationSir David has recommended the setting up of anew overarching Legal Services Board (the LSB),upon which regulatory powers should beconferred. Importantly, he accepts that in orderto build on what he calls the strengths of theexisting system of regulation, the LSB, whileretaining oversight, should delegate day to dayregulation to individual professional bodies, suchas the Bar Council and the Law Society. Thishowever is subject to those bodies carrying ontheir regulatory functions separately from theirrepresentative functions.

Living with co-regulationHowever much we may pride ourselves on self-regulation, the Government, through the LordChancellor, already enjoys the power to call inprofessional rules which it considersobjectionable. The system has therefore, formany years, been one of "co-regulation". Themerit of the Final Report is that it would preserveand rationalise such a system. Strongrepresentations are being made, though, toensure that the Legal Services Board is subject toexpress statutory restraint in the exercise of itspowers, so as to match Sir David’srecommendations. The existing high standardsand ethos of the profession depend heavily uponits right to effective autonomy of regulation.

Bar Council ModelThe Bar Council has produced a model for the

reform of its own constitution. This has beendeveloped in outline for consultative purposesand includes reformed regulatory committees,new representative committees, and a BarStandards Board which will be a ‘parent’ to all theregulatory committees, and answerable to theeventual Legal Services Board when created. Asubstantial proportion of the members of the BarStandards Board will be laymen. The barristermembers will not be members of the Bar Council.The Bar Standards Board will be ring-fenced frominterference from representative interests withinthe Bar Council. It will be required at all times toput the public interest first. It will initiateproposals. It will provide an independentassessment of the regulatory matters referred toit by the regulatory committees, and of theirperformance. The Bar Council will howeverremain the single governmental andrepresentative body for the Bar of England and

Wales, subject to this entrenched separation offunctions.

The Bar Council recognises that thedevelopment of the new regulatory framework canbest be achieved with the active support and co-operation of the Inns of Court. It is to be hopedthat a transparent division of functions betweenthe Bar Council and the Inns will be reached byagreement, and a working group has been set up.The proposal is that the Bar Council, through anappropriately constituted and empowered BarStandards Board, will, after full consultation, haveultimate responsibility for defining the rules,while the Inns in all areas of their functions willhave acknowledged discretion to apply thoserules.

A new ombudsman One reason for the Clementi review was thewidespread dissatisfaction with complaintshandling in respect of solicitors. This was notreplicated in respect of the Bar’s complaintshandling arrangements, which have beenrepeatedly praised by successive Legal ServicesOmbudsmen. Nevertheless, the Final Reportrecommended the setting up of an Office forLegal Complaints under the Legal Services Board,to which all complaints against the legalprofessional would be directed. The Office forLegal Complaints would have powers ofsubstantive adjudication in relation to allcomplaints but that it would refer issues involvingprofessional misconduct to the relevant front linebody. The Final Report decided in the end not totreat the Bar as an exception, or to exclude it fromthis process. The failure to give more weight tothe Bar’s excellent record with regard tocomplaints handling is disappointing. However, itis of particular importance to note that Clementirecommends that the Office for Legal Complaintsitself should be subordinate to the LSB. In otherwords, he appears to envisage that the LegalServices Board will delegate complaints handlingto the Office for Legal Complaints which itselfwould delegate such complaints handling to thefront line regulators in so far as professionalmisconduct was involved. There would appear tobe no logical reason why the LSB could notdelegate all complaints handling, and not merelyin relation to professional misconduct, to a frontline regulator in whose systems it had confidence.

LDP’s and partnershipsAs anticipated, the Final Report favours LegalDisciplinary Partnerships (LDPs). It stipulatesthat lawyers must represent a majority by numberof the managers of an LDP. The Report furthersupports outside ownership but stipulates thatthis must be cleared by the regulatory authoritiesas "fit to own". The fact that the recommendedsafeguards here are so elaborate may suggest thatthese proposals are highly debatable. As regardsregulation, the Report seems to envisage thatLDPs would choose a front line regulator under

the Legal Services Board, and that lawyersgenerally should have a choice as to a front lineregulator, e.g., solicitor advocates operating assole practitioners might be regulated by the BarCouncil whereas sets of chambers wishing to havedirect access on a wider basis than permitted bythe Bar Council might wish to choose a differentregulator for themselves. It would be for the LSBto decide.

The Report discusses the Bar’s rule againstpartnership. It states that it is "not obvious" thatmany barristers operating as specialist referraladvocates would wish to form partnerships, but itconcludes that the Bar’s arguments in favour ofthe rule "have force, but rather less force than isclaimed". Sir David says that he is not convincedthat they amount to a conclusive case forpreventing under the Bar’s regulatory auspicesother types of business structures. He makes nofinal recommendation on this but encourages theOffice of Fair Trading (OFT) to continue theirreview of this area. It is to be noted that the OFTin their response to Clementi indicated that theavailability of LDPs might make it easier for theBar to justify its present rule.

Professional PrinciplesTo many of those imbued with the traditions of ourlegal profession in general, and of the Bar inparticular, some of the recommendations of SirDavid Clementi may seem radical, if notrevolutionary. However, these recommendationsreflect a trend which is occurring not merely inEngland and Wales but in the rest of the UnitedKingdom and elsewhere. The Scottish Parliamentis currently engaged in a review of legal regulationin Scotland. The Irish Competition Authority hasrecently published searching proposals in relationto legal regulation in Ireland. We are not alone,therefore, in facing a bracing "wind of change".Some may think, however, that what is crucial isnot only to welcome constructive reform, but alsoto stand firm in defence of those underlyingprofessional principles which themselves ensurethat the public interest is protected and upheld.


The Circui teer 14

Life After Three RiversWhat happens when a case has been to the House of Lords three times,but they still don’t resolve an essential point? Charles Hollander, Q.C., ofBrick Court Chambers, author of Documentary Evidence, provides suchcomfort as he can for civil practitioners.

The litigation between the assignees of BCCIdeposit holders and the Bank of England has keptthe law reporters busy for some time. The case hasnow spawned its third decision from the House ofLords. But whilst their Lordships have sorted outone burning issue in the law of legal professionalprivilege, they have declined to resolve one just asimportant.

An action for misfeasance in public officeagainst the Bank of England based on itssupervision of BCCI was never likely to be problem-free. It took one appeal to the House of Lords toascertain the ingredients of this little-used tort; ittook a second appeal, decided 3-2, to resolve thatthe claimants’ case should not be struck out.

The bank collapsed in 1991. Lord JusticeBingham chaired an inquiry into it, during whichnumerous Bank of England witnesses gaveevidence. In order better to present their evidenceand submissions, the Bank set up an internal unit(the Bingham Inquiry Unit, "BIU") to obtaininformation within the Bank and to co-ordinate withthe Bank’s external legal advisers, Freshfields.

Legal advice privilege vlitigation privilegeFaced with no evidence of their own, and anunhelpful report from Lord Justice Bingham, theclaimants were keen to obtain material notavailable to the Inquiry. To do so, they challengedthe Bank’s right to claim privilege. As the Inquirywas not ‘adversarial’, it was conceded that,following Re L, this was not an instance of litigationprivilege, the law of which has remained intact. TheBank could therefore only cite legal adviceprivilege.

Round One to the Claimants Legal advice privilege can be claimed even thoughlitigation is not in reasonable contemplation; on theother hand, it cannot be claimed for third partydocuments, such as expert reports, which passbetween the third party and the client or the lawyer.They are only privileged if prepared for thedominant purpose of use in litigation.

In Three Rivers (No 5)1 the claimantssuccessfully persuaded the Court of Appeal thatlegal advice privilege only protectscommunications passing directly between theclient and the lawyer. Where the party claimingprivilege was a corporate entity, the "client" wasthe person or persons within the corporate entitycharged with obtaining the legal advice. Since theBIU was "charged with obtaining legal advice",direct communications between it and Freshfields

were privileged. It followed that two classes ofdocuments were not: (a) communications fromthe BIU within the Bank, even though its purposewas to obtain material to instruct Freshfields, and(b) communications between Freshfields and anyother individual within the Bank other than the BIU. In June 2003 the House of Lords refused leave toappeal this decision, expressing concern that thismight disrupt the start of the trial. In the event, inMarch 2005 the case is still being opened andwitnesses are not due to commence givingevidence until after Easter.

The Claimants press onEncouraged by dicta in the Court of Appealdecision, the Claimants decided to go further. Theirargument was as follows. Legal advice privilegecould be claimed for advice as to legal rights andobligations. Where there are no adversarialproceedings, very little of the lawyer’s work fallswithin that test. There is no problem with "do I haveto disclose this document to Bingham?" or "will I bein contempt if I fail to answer this question?" Butmuch of a lawyer’s job in non-adversarialproceedings is not about legal rights andobligations. Instead, it is ‘presentational advice’,i.e., ensuring that evidence is presented in themost attractive light. The Court of Appeal in No 6agreed that this was not privileged. Lord PhillipsMR even queried whether there was a place forlegal advice privilege today at all: why shouldinstructions in relation to conveying property ormaking a Will attract privilege?

On this basis, advice taken by Mr Blair beforegiving evidence to the Hutton enquiry would not beprivileged. Drafts of proofs of evidence of soldierscalled before the Bloody Sunday inquiry would fallwithin the same category. This time the House ofLords gave leave.

The House of Lords steps in . . .The House of Lords resolved the appeal in No 62 byimposing a test similar to that in Balabel v Air India3

where Taylor LJ had said:"legal advice is not confined to telling the

client the law; it must include advice as to whatshould prudently be done in the relevant legalcontext."

There would be cases where a solicitorbecomes the client’s "man of business", and wherehis advice might lack a "relevant legal context". Butthe "legal rights and obligations" test was toonarrow. Lord Carswell said:

".. all communications between a solicitor andhis client relating to a transaction in which the

solicitor has beeninstructed for the purpose of obtaining legal advicewill be privileged, notwithstanding that they do notcontain advice on matters of law or construction,provided that they are directly related to theperformance by the solicitor of his professionalduty as legal adviser of his client."

. . . but only goes half waySo far so good. But what about No 5? The Bankargued that the rationale for No 5 and No 6 was thesame, and that No 5 was therefore wrongly decided.The House of Lords, despite hearing full argumenton the correctness of No 5, declined to decide thepoint. They should not be taken as endorsing thedecision in No 5. Meanwhile, the Court of Appealdecision would stand, until he was determined inanother case.

The point is of acute practical importance.Both companies and lawyers advising them willneed to take great care not to create damagingcommunications which are not privileged. TheCourt of Appeal decision in No 5 does not assist indetermining who is the ‘client’ in any given case. Is"the client" only one person "charged withobtaining the legal advice" or can it be more? TheBIU consisted of three individuals: can steps betaken to extend the net to several individuals in anyparticular case? Moreover, those signing lists ofdocuments in litigation will have to address thebasis on which privilege may be claimed fordocuments coming into existence before litigationwas contemplated. What test should be appliedhere? Problems for an in-house lawyer are acute.He will have a commercial function and a legalfunction. Where he sends and receives documentswithin the company so that he may take externallegal advice, is he fulfilling his role as client of theexternal lawyer (internal documents not privilegedon the basis of No 5) or giving advice within thecompany himself (privileged). And the externallawyer who picks up the phone and asks (say) thefinance director, rather than the person in thecompany who has instructed him, for informationabout the dispute to help him advise will find thathis conversation may well not be privileged.

It is deeply disappointing that their Lordshipsdid not resolve these issues, which must now awaita litigant getting back to the House of Lords. As theyheard argument from Messrs Pollock, Sumption,the Attorney General, the Law Society and the BarCouncil, it is unlikely they will have a betteropportunity.

1 2003 QB 1556 2 2004 3WLR 1274 3 1988 1 Ch 317, 330


15The Circui teer

Hearsay Provisions of the Criminal JusticeAct 2003 – An unnoticed revolution?Professor David Ormerod has taken time from editing cases in the CriminalLaw Review and from finishing the latest edition of Smith and Hogan toprovide a guide to another vexed portion of the Criminal Justice Act

Introduction "practitioners should be encouraged tofocus on the principle that all relevanthearsay is potentially admissible asevidence – I stress ‘relevant and‘potentially’. (HC Standing Committee B, col. 601)

The provisions introduce welcome changes forwitnesses, allowing for use of earlier statementsin wider circumstances and to greater effect.

The New RuleIt is important, before dealing with admissibility,to identify whether a statement constituteshearsay. It is still defined as the reliance on astatement made otherwise than while givingevidence to prove matter stated. However, thescope of the rule is reformed:• S 115(2) redefines statements to include

photo-fits and sketches, a welcome reversal ofCook (1987).

• S 115 (3) (a) restricts the rule to cases wherethe maker of the statement (W) had as (oneof) his purpose(s) to cause another to believethe matter stated. Statements of greeting -"Hello X", mere requests for drugs etc, areprobably no longer hearsay since their makerdoes not intend to communicate anything bythem.

• S 115(3)(b) extends the rule, making W’s out ofcourt statement hearsay if it causes a person toact on it even if W did not intend them tobelieve it (e.g., W submits expenses claims notcaring whether they will be believed, thedocuments are hearsay if relied on to provetheir contents.)

• The rule is more likely to apply to negativehearsay i.e., where W makes a statement byomitting information, if the purpose ofomission was to cause someone to believethat/act on that information.

The reform relating to implied assertions iscomplex and owing to drafting deficiencies maynot achieve its objective of reversing the decisionin Kearley (1992).

Admissibility of hearsay via the exceptions S 114(1) offers four routes to admissibility forhearsay evidence:• invoking a statutory rule – the new statutory

exceptions in ss 116 and 117 and some statutoryfavourites such as s 9 CJA 1967;

• invoking a preserved common law exception;• seeking the agreement of all parties - the easy

escape if your opponent is as intimidated byhearsay as you;

• persuading the court that admissibility is in theinterests of justice – the "safety valve".

New Statutory exceptionsSection 116 replaces and extends s 23 of the CJA1988, (key differences from that section areitalicised): • S 116 admits first hand hearsay whether oral

documentary or other, of a statement from anidentified person who can be shown to havebeen competent (s. 123) and who is missing forone of the specified reasons (unless theunavailability is caused by the party seeking torely on it) – dead, unfit, outside the UK and notpracticable to attend, cannot be found. In thesecases admissibility is automatic - no leave isrequired. Surely this has the potential to openthe floodgates to defence fabrication of alibisfrom abroad? Automatic admissibility ofprosecution evidence also raises potentialproblems with Article 6(3)(d) of the EHCR,although prosecution evidence is subject toPACE s.78. If the witness is unwilling to testify(at all or selectively), owing to fear (as widelyconstrued s. 116(3)), leave must be sought andthe court should consider a special measuresdirection. In all cases, the relevant person’scredibility can be challenged under s 124.

Section 117 replaces and improves s 24 of the CJA1988. • Section 117 admits documentary hearsay

created or received in the course of a trade orbusiness, provided the relevant person (ie theperson who perceived the events if he isdifferent from the one who created thedocument) is identified and was competent(s.123). Multiple hearsay (W has receivedinformation from A, who has received it from Betc) can be admitted. If the document wascreated with a view to criminal proceedings, the‘relevant person’ has to be shown to beunavailable for one of the reasons in s 116, orthe additional option – that he could notreasonably be expected to recall the events.Admissibility is subject to a discretionexercisable against prosecution or defence(s.117(7)) based on reliability. The relevantperson’s credibility can be challenged under s124.

Preserved exceptions Preserved common law rules are described (ordefined?) in s.118, creating complexity by graftingold (and often ill-defined) exceptions onto themodern structure. They concern evidence ofreputation, res gestae, common law confessionsand admissions, common enterprise and expertevidence. Given the safety valve these may provesuperfluous.

Safety valveSection 114(1)(d) provides a general power toadmit hearsay if it is in the interests of justice todo so – for either party. The Act does not limit thesafety valve to cases of potential miscarriage –there is nothing to say it is a "last resort". Thecourt must have regard to the following non-exhaustive list of factors: (a) the probative value of the statement or its

value for contextualising evidence;

(b) what other evidence is available; (c) how important the matter is in the case; (d) the circumstances in which the statement was

made; (e) the reliability of the maker; (f) the reliability of the making of the statement; (g) whether oral evidence of the matter can be

given; (h) the difficulty involved in challenging the

statement; (i) the potential prejudice to the party facing it.

This may come to be so widely used as to swallowthe hearsay rule up in practical terms.

Multiple HearsayMultiple hearsay (e.g., W’s account that ‘A told methat B told him that C stole it’) is not admissibleunless one of the statements is admissible as abusiness document (s.117) or, exceptionally, it is aprevious statement by a witness in the case, or,where the court is satisfied that the value of theevidence is so high that it can invoke the additional‘safety valve’ in s.121(1)(c).

Previous (In)consistentstatementsPrevious inconsistent statements are admitted onthe same grounds as before, but when admittedthey will be capable of supplying evidence of thetruth not merely consistency of any matter stated.Previous consistent statements becomeadmissible as evidence of truth where they arerelied on to • rebut allegations of recent fabrication • refresh memory• where W testifies to having made an earlier

statement, that it was true, and ✔ it confirms a previous identification of a

person/object/place, or✔ it demonstrates consistency with a fresh

statement which W now does not/could notbe expected to recall. This represents anenormous change, or

✔ it is evidence of a recent complaint by thevictim (not just in sex cases) made withoutthreat or promise "as soon as couldreasonably be expected" after the crime.Again, a vast change.

Memory refreshingA witness may refresh his memory by relying onstatements made when his recollection is likely tohave been "significantly better" when he made orverified the document – the common law"contemporaneity" requirement has gone.

New discretionsThe court acquires a power to stop a case whereevidence is unconvincing (s.125) and a ‘generaldiscretion’ targeted at superfluous evidence(s.126) to supplement its discretions at commonlaw and under s.78 PACE.


The Circui teer 16

The Revised Family Graduated Fees Scheme:A Better Looking Frog

The Lord Chancellor may be married to a family practitioner but that hasn’t made feenegotiation for the family Bar any easier. After her years of struggle with the DCA, CarolAtkinson of Coram Chambers kindly reports on the regime which members of the family Barwill now have to live with.

At long last, after almost 3 years of "negotiations"the FLBA team have finally managed to "agree" anumber of significant revisions to the FamilyGraduated Fees Scheme.

Although promised a review after 12 months,we were limited to redrafting the scheme withinthe confines of its current framework. Despitetaking a cut in fees well beyond that originallyproposed by the former Lord Chancellor, we weretold initially that there was to be no more money.However we finally secured what we hope willprove to be an 8% increase overall.

As Andrew MacFarlane QC put it at the recentFLBA training event:

"We knew that we would never manage topersuade the Government to give us a Prince inplace of the Frog, but we have got a better lookingFrog".

The changes are set out in the CommunityLegal Services (Funding) (Counsel inFamily Proceedings) (Amendment) Order2005 ("the 2005 Order") which needs to be readwith the original Order (S.I. 2001/1077) and the2003 Order (S.I. 2003/2590).

It is also worth looking at the Guidance issuedby the LSC. Contact Ruth Symons [email protected] for a pack.However, remember that the Guidance is just that:the real detail is in the funding Orders.

The 2005 Order comes into force on 28thFebruary 2005. The changes to the scheme setout below will apply to cases in which a certificateis granted or amended to add new proceedingsAFTER 28th February 2005 EXCEPT in relation tothe submission of claims. The new time limits forthe submission of claims come into force inrelation to main hearings which conclude on orafter 28th February 2005 and certificates which

are discharged/revoked on or after 28th February2005.

General changesFunctionsFunctions remain largely as defined in the 2001and 2003 Orders. However, there is an importantrefinement to the definitions of F2 and F3.

Under the 2005 Order, F3 has been expandedto include a "committal hearing" while F2 has hadcommittal hearings specifically excluded from itsambit. A "committal hearing" is defined as "anyhearing to determine whether a person should becommitted to prison."

This definition was added in order to dealwith the inadequate remuneration for committalproceedings within the domestic violencecategory. As a result, though, the benefit of betterremuneration for a committal hearing ininjunction/enforcement proceedings is spreadacross all categories.

SIPSThere are a number of important changes to

SIPs – all intended to create greater "graduation"within the scheme. SIPs in the revised scheme arecategory specific, that is, all SIPs do not applyacross the categories. The specifics in relation toeach category are set out below.

Of application across all categories is thegeneral point that SIPs will now be paid on allhearing units and at every F2 and F3 hearingwherever they are of substance andrelevant to any of the issues before thecourt at that hearing.

Conferences (F4) and other work/advices (F1)

The limitation of one paid conference and onepaid piece of freestanding advice/ other work hasnow been removed. Conferences (F4) and otherwork/advices (F1) are capable of being claimed upto twice in a category.

Cases in the FPC and the maximum feeprincipleThere have been some significant changes here.In circumstances in which there is no authority toinstruct counsel in the FPC, counsel will be paid atsolicitors’ hourly rates – and that includesenhancements which are NOT personal to thesolicitor.

TravelThe limitation on the payment of travel expenseswithin 40 km of Charing Cross or of a local Bar wasrelaxed following the 2003 Order. SinceNovember 2003 the LSC has accepted that if thelocal Bar is small and may not be able to cover allcases, or where they simply lack specialistknowledge, it is reasonable for a solicitor toinstruct counsel outside of the local Bar. The testis whether the travel expenses have beenreasonably and necessarily incurred and indetermining this the Commission looks at thecomplexity of the issues, counsel’s particularexpertise, the location of the solicitor and clientand the need for continuity of counsel, particularlywhere an earlier meeting has taken place.

Submission of claimsTime limits on submission of claims have beenreduced from three months to two months afterthe conclusion of the main hearing or, in relationto other functions, within two months of thedischarge or revocation of the certificate.

CRIMINAL JUSTICE ACT 2003 – SOUTH EASTERN CIRCUIT TRAININGSaturday, April 16, 2005, at the BPP Law School, London

The full day’s programme, consisting of lectures, demonstrations, Q&A’s and hypotheticals, will deal withSentencing, Hearsay, ‘Bad Character’, Case Management and Interlocutory Appeals

Training in the Act is essential for all criminal practitioners

Cost: £85 (£50 for Circuit members under 7 years’ Call)

Booking: Sarah Montgomery at [email protected] or DX 240 LDE

Information: Kaly Kaul at [email protected], 07956 264282


17The Circui teer

Category 1 – Domestic violenceThere is little change to this category save, as set out above, the creation of anew F3.

Figures in boxes

New figuresCat 1 Junior QC

Base Fees Base Fee SIPsF1 £80.00 £200.00 Litigants 10%F2 £115.00 £287.50 Experts 10%F3 (for committals) £172.50 £431.00 F4 £70.00 £175.00 F5 £310.00 £775.00 F5 secondary £220.00 £550.00

Category 2 – public law childrenThere are 2 new SIPs designed to target money where it is generally mostdeserved.

The new "client care" SIP is defined as:

"(ca) representation of a person who has difficulty:

(i) giving instructions, or

(ii) understanding advice;

attributable to a mental disorder or to a significant impairment ofintelligence or social functioning;"

The definition of mental disorder is the same as in section 1 Mental HealthAct 1983.

The LSC Guidance suggests that there should be a report from apsychologist or psychiatrist before this SIP can be claimed. This may be so ifthe claim relates to a diagnosis of "mental disorder". However, where theclaim relates to a client with "significant impairment of intelligence or socialfunctioning" the evidence may come from a social worker or from themanner in which the client presents to the judge.

The new "parents/ accused persons" SIP is defined as

"(cb) representation of:

(i) a parent or parents of a child who is the subject of proceedings, or

(ii) another person (including a child) against whom allegations are made

that he has caused or is likely to cause significant harm to a child;"

Payments under the first limb – i.e., to parents – are automatic and turnupon the fact of representation. There is no requirement that the parent/sshould also be the person against whom allegations of harm are made.

Payments under the second limb are subject to the substance and relevancetest i.e., the allegations that the client has caused significant harm to a childmust be of substance and relevance at the hearing in respect of which it isclaimed.

This SIP is payable in adoption proceedings but not in child abduction cases.

Figures in boxes


Base Fees Base Fee SIPsF1 £80.00 £200.00 Experts 15%F2 £85.00 £212.50 Extra party 40%F3* £130.00 £325.00 Foreign 25%F4 £70.00 £175.00 Conduct 20%F5** £430.00 £1,075.00 Care 25%F5 secondary £230.00 £575.00 Parent 25%

CMC bolt on – £82.50/£206.25

Category 3 – private law childrenThere are major changes in this category to the base fees.

The new "client care" SIP is available in this Category. Although the"experts" SIP remains the same as in categories 1 and 2 above there hasbeen a relaxation of the rule in relation to the CAFCASS officer. The LSCGuidance now accepts that in this Category "the CAFCASS Officer isregarded as an expert."

Figures in boxes


Base Fees Base Fee SIPsF1 £80.00 £200.00 Litigants 30%F2 £75.00 £187.50 Experts 50%F3 £130.00 £325.00 Extra party 30%F4 £120.00 £300.00 Foreign 30%F5 £325.00 £812.50 Conduct 50%F5 secondary £240.00 £600.00 Care 25%

Category 4 – ancillary relief and otherThere are increases in figures and major changes to SIPs and the payment ofenforcement procedures in this category.So far as the old "assets" SIP is concerned the Guidance now makes clearthat this may include work involving pension splitting or earmarking.

There is to be a new "accounts" SIP defined as follows:"(cc) analysis of the business accounts of an individual, partnership orcompany"

Business accounts are expressed to include "accounts relating to trusts andinvestments whether or not those accounts are maintained for the purposesof, or in connection with, a business"

The "experts" SIP in this category has been redefined so that it applieswhere there is ONE OR MORE expert (as opposed to more than one). TheGuidance makes clear that an expert instructed to value the formermatrimonial home does not fall into the definition of expert. However, ifproperty other than the FMH is in issue in the case or there are conflictingvaluations for instance then the position would be different.

Bolt-ons – the bolt-on for the FDR has been joined by a bolt-on payable inthis category only when work is carried out under F2 "in connection with ahearing relating to:

(a) injunctive relief which is contested; or

(b) enforcement procedures"

The LSC Guidance suggests that "contested injunction proceedings" areproceedings where evidence is given, which is likely in the vast majority ofcases. However there MAY be instances in which an application forinjunctive relief IS contested but the evidence is perhaps not disputed – theargument concentrating upon whether or not an injunction as a matter of lawor on the facts is appropriate. It seems to us that in those circumstancesthe bolt-on would be claimable.

Figures in boxes


Base Fees Base Fee SIPsF1 £90.00 £225.00 Litigants 25%F2 £100.00 £250.00 Extra party 10%F3 £120.00 £300.00 Foreign 25%F4 £90.00 £225.00 Conduct 50%F5 £325.00 £812.50 Accounts 50%F5 secondary £240.00 £600.00 Experts 25%

Assets 25%* F2 bolt on for enforcement procs or contested injunctions - £100/£250

** F3 FDR bolt on - £115/ £287.50


The Circui teer 18

Being in NorwichIn the first of a series about Circuit towns, John ‘Taff’ Morgans of Octagon Chambers revealsthe ‘best’ of a city where barristers can find a great deal more to do than just to go to court.

NORWICH IS OUR OYSTER, declared AlanPartridge before whisking his lucky Valentine offto an afternoon at an owl sanctuary. But there is agreat else to see and do if your case brings you toNorwich.

Getting to NorwichIf you are arriving by car, you will have seen thesigns welcoming you to ‘A Fine City’—traditionallyattributed to the nineteenth century writer,George Borrow, but a description taken very muchto heart by the local council. Their policy ofreplacing almost all city centre car parks withluxury flats, while simultaneously tripling thenumber of traffic wardens, means that you have agreater chance of getting a ticket in Norwich thananywhere else in Western Europe. TheBishopgate car park is the one to use for thecourts, and it is advisable to pay for longer thanyou think your hearing will take—the wardensknow how cases can run over, and they patrolaccordingly.

Trains, twice an hour from Liverpool Street,arrive in the recently refurbished station. Fromhere, one can either take a taxi (there is a rank atthe front of the station) or if walking, turn rightalong Riverside Road, until the pedestrian bridgeon your left. That leads you to Bishopgate. Thewalk takes around 10 minutes.

Places to stayThe hotel closest to the courts is the Maid’s Head(01603 209955). Many visiting members of the Bar

take advantage of the special rates offered by theNorfolk Club (01603 626767) which is also only ashort walk away. For those who are prepared tostay a little further out, and to take their chanceswith the traffic gridlock, then the four-star DeVere Dunston Hall (central reservations, 08706063606) is spoken of very highly.

Where to lunchIf you like pre-packaged sandwiches or tastelesshot dishes at premium prices, then the courtcanteen is the place for you. If not, then both ‘TheWig and Pen’ (01603 625891) and ‘The Adam andEve’ (01603 667423) do good lunches at sensibleprices and are close enough to the court for theshort adjournment. The bacon sandwiches at ‘theWig’ are particularly recommended.

If you have more time, a short walk toTombland will bring you to the highlyrecommended Tatlers restaurant (01603 766670),with an innovative chef and an extensive (andpotentially expensive) wine list. Over the summermonths, La Tasca (01603 776420) is the place to gofor the outside tables, but it is a much better betto sit and have a quiet sangria or two rather thanto risk the frankly disappointing (and occasionallystill frozen) tapas.

For real tapas, try the Spanish-owned and runTorero (01603 621825) in Fye Bridge Street. Thissmall restaurant is very reasonably priced andpopular, especially in the evening, but areservation is seldom required for lunch. The realproblem comes with deciding what to choosefrom the extensive menu. A member of the localBar recently just ordered everything on it.

Where to dineTatlers and the Michelin-starred Adlard’s

(01603 633522) are amongst the obvious top endchoices, but with some hesitation, I recommendBy Appointment (01603 630730) on St. GeorgesStreet. My hesitation stems from it being veryidiosyncratic and perhaps not to everyone’s taste;its individuality means that the quality of theexperience varies—and at times, it can bedisappointing. However, when they get it right,

they really get it right, with the best food in thecity. A meal here can be an occasion which willmake a lasting impression. Look out for one oftheir lobster nights for a real treat.

For a mid-range restaurant, The Sugar Hut(01603 766755) on Opie Street is the best of asurprisingly large number of Thai restaurantswhich have opened in the city over the last fewyears, whilst the home-cooked Spanish fare atDon Pepe (01603 633979) on St. Benedicts Streetis also consistently excellent.

If you are looking for a great curry then thereare a number of places on Magdalen Street thatare well worth a visit. The Ali Tandoori (01603632101) is particularly good and guarantees afriendly welcome.

Places to visitThere can be no excuse for not visiting themagnificent Cathedral. The 315-foot spire (thesecond highest in England) can be seen from thecourt. The earliest part of the building is theBauchon Chapel, dating from 1329; the spire wasbuilt in the fifteenth century.

The Catholic Cathedral of St. John the Baptiston Earlham Road (01603 624615) was built in asimilar, Early English style, of the 13th century, butin fact dates from 1882 and was only completed inthe early twentieth century.

It has often been claimed that Norwich hasenough pubs for a different one every night of theyear, and enough churches for every Sunday of theyear. So far my investigations into the 365 areprogressing faster than into the 52, but I wouldrecommend visiting the church of St. PeterMancroft, adjacent to the Market Square, for thespectacular fifteenth century stained glass.

Elm Hill

Maids Head Hotel

Royal Arcade


19The Circui teer

Special Measures for Defendants?How far is far enough ?The Government is rightly concerned about victims having their say, butwhat happens if the defendant is a vulnerable witness as well? NoémiBird, a pupil at 6 Pump Court, considers the effect of a recent House ofLords judgment

The House of Lords decision in R v CamberwellYouth Court ex parte D and others ([2005]UKHL 4) revisits the question, amongst others, ofthe extent to which the courts may (or arerequired to) assist vulnerable defendants. In thiscase the defendants were children, and thereforeunlike the prosecution witnesses excluded from aspecial measures directions under the YouthJustice and Criminal Evidence Act 1999. Thequestion certified by the Divisional Court (andanswered by their Lordships in the negative) waswhether section 21(5), which virtually mandatesevidence by live link for children ‘in need of specialprotection’, breached Article 6, as it preventedindividualised consideration of whether aparticular witness needed a special measuresdirection at the stage when the direction wasmade.

The issue goes further. While acknowledgingthat equality of arms is a bedrock principle ofcriminal trial, there has been little clarity as to howthis may be achieved in a case in which bothwitnesses and the accused are children.

Best evidenceThe purpose of special measures for childwitnesses, and indeed any directions made to helpvulnerable defendants, is to assist them in giving‘best evidence’. Achieving this for the prosecutioncan be neither more nor less desirable than it isfor a defendant. Nevertheless, the absence ofstatutory special measures for defendants isviewed by some as creating an unfair situation inreal life terms: " It is really something of a farcethat in proceedings concerning, say, a fightbetween gangs of boys in which one side ends up inthe dock and the other in the witness box, only the

latter are deemed to benefit from the live-link."1

Lord Rodgers was not unsympathetic to that view.He thought that jurors had an ‘unenviable task’ if aspecial measures direction allowed ‘dishonestwitnesses to give their untruthful accounts in themost complete and coherent way of which theywere capable.’ And Lady Hale recognised that manyyouth court defendants have little support fromparents or social services and have few educationalskills.

Speaking up for JusticeIn 1998 the Home Office ‘Speaking up for Justice’Report concluded that special measures shouldnot be made available to defendants. This policy isreflected in S 16 (1) of the Youth Justice andCriminal Evidence Act 1999. Following criticism bythe European Court of Human Rights of theconduct of the Venables trial in the UnitedKingdom, the Practice Direction on the Trial ofChildren and Young Persons in the Crown Courtwas produced. More recently, the European Courtheld that the trial of an 11 year old defendant withlearning difficulties breached Article 6 (1), eventhough wigs and gowns had been dispensed withand he was not required to sit in the dock2. TheCourt’s concerns focused on the question ofwhether the defendant would be able to"participate effectively" in the trial.

In the Camberwell Youth Court case, theirLordships’ reasoning in part reflects the thinkingbehind the 1998 report : special measures fordefendants are unnecessary because: "thedefendant does not need to give evidence, and hehas a legal representative to assist him if hechooses to do so". They rejected the idea that thegranting of special measures for children ‘in need

of special protection’ should depend on the natureof the case or the age of the defendant. BaronessHale went on, ‘The defendant is excluded from thestatutory scheme because it is clearlyinappropriate to apply the whole scheme to him’,citing the ‘obvious difficulties about admitting avideo recorded interview as his evidence in chief’.

However, this judgment does not firmlyconclude that special measures could not beextended to defendants by statute. TheirLordships referred to the coming into force of theVulnerable Witnesses (Scotland) Act under whichchild defendants will, for the most part, be treatedin the same way as child witnesses and stated thatthere are "no insuperable difficulties" in the way oftaking a similar step in England and Wales. Inaddition, nothing in the 1999 Act prevents the courtusing its inherent jurisdiction to ensure a fair trial.

How does the law stand at present? InCamberwell Youth Court case, their Lordshipsconcluded that the Court must consider, on a caseby case basis, what if anything must be done toensure that a defendant is not at a substantialdisadvantage compared with the prosecution andother defendants. There is anecdotal evidence thatcourts have done this but there is no scheme orcriteria against which this can be measured.Although the judgment found that the absence ofstatutory special measures for a child defendant isnot incompatible with their rights under Article 6,that will not be the case unless the courtnevertheless makes use of its discretion to assista vulnerable defendant to participate effectively inhis own trial.1 Commentary on the Redbridge case by Prof. Birch [2001] CrimLR 473, 477 quoted in Camberwell Green at paragraph 542 SC v UK ECHR 06958/00

The Market Square itself, which traces itsroots to Norman times, is currently beingredeveloped and from the current rubble it isdifficult to guess what will emerge. Perhaps theCouncil will use some of the parking fine revenueand pave it with gold. Whatever the future brings,it must be hoped that the highly praised cheesestall remains unchanged and that the man whosells Hoover bags will be allowed to return. If so,the market will still be the bizarre bazaar belovedby locals and visitors alike, and well worth a visit.

For more usual purchases, the excitement ismounting regarding the imminent arrival of Houseof Fraser as part of the development of the oldNestle factory site. For now (and since 1832) the

family-run Jarrold department store (01603660661) is the place to go. It has recentlyexpanded its floor space and is constantlyexpanding its range of goods. It has just beennamed ‘Independent Department Store of theYear’. House of who?

Elm Hill is only a short walk from the court,and is home to a number of smaller shops andgalleries. Amongst them is the DormouseBookshop (01603 621021) where proprietor Philipoffers an extensive selection of second handbooks, including a good collection of first editions.Also on Elm Hill are the excellent Peter Grahamwine shop, the Contemporary Art Gallery (01603617945) and Antiques and Interiors (01603 622695)

amongst a number of other retailers well worthvisiting.

I hope this gives some inspiration for a visit toNorwich, and encourages those put off by ourrecent description from a very brave (and yetstrangely anonymous) author as the mostunfriendly robing room in England. This fearlesscritic should not be concerned about revealing hisname: witch dunking has almost died out, and thelast time we burned a London barrister at thestake was literally years ago (and some claim eventhat was accidental), so we can almost guaranteehis safety. The locals really aren’t all thatdangerous, and remember, Norwich is your oyster.


The Circui teer 20

Sole PractitionersMost barristers believe that there is no alternative to practice withinchambers. Sole Practitioner Mary MacPherson explains how there is adifferent way to provide service to the client, and invites Circuiteers toattend the conference on May 7.

Thanks to computers we can be industrious andprosperous without going out to work. Barristerscan research case law and statutes, advise clients,send out opinions, pay bills and make travelarrangements, all on the internet. It is no longerodd for barristers to work at home, clerked at longrange via electronic links.

Doing it differentlyA growing number of barristers have taken this astep further by practising without either a clerk orchambers. There are now 251 members of theEnglish Bar who are registered with the BarCouncil as having opted for this way of working.The numbers have increased steadily since theBar Sole Practitioners Group was founded in 2000with a nucleus of seven members. It is under thechairmanship of Robert Banks, who is acommittee member of the South Eastern Circuit,and divides his time between a secludedfarmhouse in rural East Sussex and a smartLondon apartment in W. 1.

The South Eastern Circuit was instrumentalin setting up the group, and since then has beenactive in its support, including generoussponsorship of the annual conference. One of theoriginal purposes of the group was to safeguardthe option of practising alone and to representsole practitioners when home-working seemed tobe under threat from tighter controls.

Following the rulesAll new sole practitioners are required first tohave been in full-time practice for a total of threeyears following completion of a recognisedpupillage. Fully paid-up professional indemnityinsurance is also mandatory. Notification of theintention to practise alone must be given to BarMutual, and to the Bar Council, who insist on proof

of fully paid-up insurance and on confirmation ofthe availability of a law library and of facilities forkeeping and storing records. One’s Inn of Courtshould also be informed. Details of thesearrangements must be sent to a senior member ofthe Circuit who will decide whether everything isin order and will also offer advice.

Pros and consThe obvious advantage of working from home andbeing your own clerk is that you have sole controlof the diary. You can avoid committing yourself tounrealistic deadlines and within limits can fixappointments to fit in with your other work andwith the rest of your life. The other big advantageis that you have no chambers overheads and noclerks’ fees to pay.

The main advantage to clients is that they canobtain swift access without going through a clerk.A combination of answering machine, mobiletelephone and computer ensure personal contactand a reply by telephone or by email within 12hours. Another crucial advantage for clients isthat they share the benefit of the reducedoverheads. The key to a successful sole practiceis a service which is flexible, accessible and cost-effective.

The disadvantage is that there is no escapefrom the simple tasks that clerks used to do foryou : keeping accounts, and writing and sendingout fee notes and receipts is all time-consuming ;so are the trips to the stationers for items whichin chambers you took for granted. Although feenegotiation can be simplified by the production ofa written scale, it is faintly embarrassing until youget used to it.

One way of avoiding these chores is tosacrifice some independence by belonging to anInternet set of chambers such as BarristerWeb or

Clerksroom. Work goes there through thewebsite. It is then allocated to paid-up membersand the clerks negotiate the fees and collect apercentage on them.

The Group in actionThe Group has fought for sole practitioners to

be treated fairly. They made representations tothe Legal Services Commission during the setting-up of QualityMark and to the prosecutionauthorities when the rules for Standing Counselwere being formulated. They have also maderecommendations to the Department forConstitutional Affairs and the Bar Council on mostof the recent developments : direct access,accreditation, the Diversity Code, theappointment of judges and Q.C.’s, pupillage,Practice Directions, Office of Fair Tradingenquiries, funding entrance to the Bar and wigsand gowns.

The fifth annual conference of the Group is tobe held on 7th May at 1 Carlton House Terrace,London SW1. Because of the increasing interest inworking from home the conference is open to allmembers of the Bar. The topics have been chosenfor their general interest. The four plenarysessions cover the Freedom of Information Act,money laundering, securing a public appointmentand the technological advances which facilitatehome working. The cost per delegate is £30 toinclude refreshments and buffet lunch.Attendance is accredited for 4 CPD hours.

Those wishing to attend the 5th Conference ofthe Bar Sole Practitioners Group (cost £30: 4CPD points) should contact Robert Banks,Chairman,( DX 94252 Marylebone) or MaryMacpherson ([email protected])

The Dame Ann Ebsworth Memorial Lecture –30 June 2005On 30 June 2005, at Inner Temple, the SouthEastern Circuit will hold the first in a series ofannual lectures in memory of Dame AnnEbsworth.

The lecture will be given by Justice MichaelKirby and will be entitled "Appellate Advocacy –New Challenges". In 1996, Justice Kirby wasappointed to the Australian High Court, Australia’sFederal Supreme Court, and was President of theNew South Wales Court of Appeal from 1984 to1996. He has written very widely on the lawparticularly about human rights.

Dame Ann was a judge of the Queen’s Bench

Division from 1992 until 2001 and a circuit judgefrom 1983 to 1992. She had the great distinction ofbeing the first woman appointed to be a judge ofthe Queen’s Bench Division. Although shereferred to herself as a "safe pair of hands", shewas much more than that. She cared deeply aboutthe law, but even more deeply about justice. Thosewho appeared before her could not have had afairer tribunal. She retired early because of ill-health but showed great courage in working for aslong as possible. She died in 2002 of cancer whenshe was only 64.

As The Guardian wrote shortly after her

death, "She leaves a lasting mark on the history ofthe legal world, and in the hearts of thosefortunate enough to have known her well".

Dame Ann devoted a great deal of her time toteaching advocacy. The South Eastern Circuitbenefited greatly from her involvement over manyyears in the annual course at Keble College foryoung practitioners. As a result, it takes very greatpride in establishing this series of lectures as afitting memorial to her.

Philip Bartle, Q.C.Director of Education and Training,

South Eastern Circuit


21The Circui teer

From Around the CircuitCambridge andPeterboroughThe Mess and its members are I believe in goodheart ready to tackle whatever 2005 may throw atthem. 2004 ended on a sad note with the death ofHHJ David Stokes, Q.C. David was a past chairmanof the Mess. He will be sadly missed.

The new Cambridge Crown Court is nowofficially open. Lord Falconer was heckled onarrival by the pro-hunting lobby. As I did not makethe guest list I can’t report on what occurredinside the building. A small number of members ofthe Bar were invited. I suppose this reflects HMGovernment’s plans for the Courts in the twenty-first century: state of the art buildings, a first classjudiciary of unparalleled diversity, thousands of"new" defendants to satisfy the "fair-minded"electorate that every thing is being done toprotect them and society, and the odd barrister tomake up numbers!!!

The Mess held its annual dinner at New Hall,Cambridge on the 5th March 2005. We are afriendly bunch but speaking of friendly bunches Iventured into Norfolk recently. There in the robingroom was an article by one "Felix" proclaimingNorwich to be the unfriendliest court in thecountry. Something to do with "not cracking atrial". Odd really, as the local Bar would find a wayto crack a trial whatever the circumstancesirrespective of what outsiders do. Cracking trialsis like SadoM. It’s legal but frowned upon but ifyou enjoy it what the hell!! Norwich practitionersare masters of the art that’s all. [At cracking trialsor SadoM I’ll leave you to work out]. I suspectFelix came up and made the mistake that many"London" practitioners make, treating the localBar as country bumpkins! I’m sure this is going torumble on and on!

Causing death by careless driving the latestelectoral gimmick? Scares the pants off me [and Isuspect every other driver that does his/her bestto drive carefully]. Do you think there will be adefence of "the badly designed junction with nextto no visibility either way?" If not who will riskpulling out? Who hasn’t encountered the poorlymaintained road that doesn’t allow a straightcourse to be pursued? I suspect only Labourministers could answer that from the backs oftheir official limo’s on that short journey fromDepartment building to Number 10. As I saidearlier thousands of new defendants to populatethe courts of the twenty-first century. Still look onthe bright side, more work for the Bar!!

Cromwell

East Anglia Bar MessA big thank you to all those who either voted byproxy or in person at the election on the 21stFebruary. Our new committee, with John Farmer asChairman, and Luke Brown as Treasurer, are lookingforward to taking on their roles. We would also liketo extend our gratitude to the previous incumbents,Graham Parkins, Q.C., and Simon Redmayne, for alltheir work over their years in office.

The tea and coffee making facilities we haveprovided in the robing rooms at Norwich seem tobe popular, judging from the feedback. Apologiesfor those times when the milk has run out!

The new committee would like to take thisopportunity to congratulate Jeremy Richards onhis recent appointment to the Circuit bench. As aformer Mess Junior, he has worked very hard forthe Committee for which we thank him. We wishhim every success in his new post.

John MorgansBar Mess Junior

Kent Bar MessThe Mess had a wonderful dinner in the MiddleTemple Hall on Friday 3rd December 2004. Ourguest speaker was HHJ Warwick McKinnon whoentertained us with his natural warmth, and wit,before "strutting his funky stuff" at the AdamStreet Wine Bar. He is, apparently, a lovely mover.My informant tells me that the learned judge justabout made it home as the sun began to rise overthe Purley Way.

We warmly welcome to Maidstone CrownCourt HHJ Michael Lawson, Q.C. Michael showedwhat a great friend of the Bar he is by providingliberal quantities of champers for the Mess on theday of his arrival. The Committee has unanimouslypassed a resolution commending this initiationrite to all new appointees. On Friday 18thFebruary 2005, in the "short adjournment", he verykindly chaired a seminar for those of us who bythen had sobered up, on the government’s latestwheeze to keep the CACD in work, the new ‘badcharacter’ provisions. That the event was so wellsupported by members of the Mess reflects, wefeel, upon our deep intellectual curiosity and ourthirst for learning. It is in no way connected withthe fact that attendance at the seminar was worthone unaccredited CPD point.

HH Judge Michael O’Sullivan’s proudannouncement, "we are a grandfather!" is indeedgood news. He tells me that it was no trouble atall. He is already training his grandson not to crywhilst they are watching the Six Nations rugby onTV.

Bench and Bar alike were deeply saddened bythe death, as a result of a brain haemorrhage, ofHH Judge David Griffiths, 73, former residentjudge of Maidstone Crown Court. David died theday after the annual Mess dinner, an occasion thathe never missed, even though living in deepestWales. He was a much loved friend to all of us whopractise in Kent. His death, after such a shortperiod of retirement (in 2000), came as a greatshock to his many friends. We extend oursympathy to his dear wife Anita and to their family.

Warm tributes to David were paid atCanterbury by HH Judges Webb and O’Sullivan andat Maidstone by HH Judge Neligan (deputising forHH Judge Patience who was sitting in the CACD).

Many travelled from Kent on Friday 10thDecember 2004 to David’s beloved Wales for hisfuneral.

We hope that there will be a memorial servicein the near future.

Fiona Moore-Graham

The Central Criminal CourtBar Mess The Central Criminal Court Bar Mess has existedin its present form at least since the beginning ofthe last century, and despite some changes in thedécor and the quality of the food, it otherwisecarries on much as ever.

The Bailey has sadly lost two of its judges inrecent times, first His Honour Judge MichaelHyam, the Recorder of London, and then HisHonour Judge David Stokes, Q.C. The Mess waswell represented at the services commemoratingtheir lives.

The court has now gained a new Recorder, HisHonour Judge Peter Beaumont, Q.C, and there isanticipation of further appointments in answer toa recent advertisement for no fewer than fournew judges.

It is often forgotten that the Mess is in factonly available to members. Until recently therewas a requirement that non-members had to besigned in. Whilst that rule is no longer thusenforced, it is worth remembering that non-members using the facilities of the Mess aredoing so at the expense of those who have paidtheir £15 per year dues.

The money obtained from membership fees,in recent times, has been used to refurbish muchof the furniture in the Mess. Work is also ongoingto improve the library facilities. In collaborationwith the Court authorities BTOpenZone has beeninstalled to allow wireless internet access.

Any freeloading members with an attack ofconscience can obtain a membership applicationform from Duncan Atkinson at 6, King’s BenchWalk.

Duncan Atkinson

Sussex Bar MessLast November, the Kent and Sussex Family LawBar Association hosted the national Family LawBar Association Conference in Brighton, chairedby Mrs Justice Pauffley. Nearly 200 people from allover the country attended to hear a variety ofdistinguished speakers on a wide range of topics.We were delighted to welcome Baroness Ashton,Minister at the Department for ConstitutionalAffairs, who gave a vigorous account of theGovernment’s proposals for the future of familyjustice.

In the evening, some 90 of the delegates werelavishly entertained in the banqueting hall of theRoyal Pavilion (welcomed by "Dame Margot"Hamilton, in true Brighton fashion). For thosewho could continue, there was dancing, ‘til theearly hours and beyond, but that’s another story!

In February, the Bar Mess played host to TheHonourable Mr Justice Bell at Shelley’s restaurant


The Circui teer 22

in Lewes. This proved to be another outstandingsuccess and was enjoyed by all who attended.

Finally, on the 22nd April, Timothy Dutton,Q.C., Leader of the South Eastern Circuit, will bejoining us for lunch at the Bar Mess in Lewes. Thisshould be a splendid occasion and all membersare encouraged to attend.

Timothy Bergin

Essex Bar Mess It has been a very sad time for the Mess. Thedeath of two stalwarts, both taken far too soon,has rather overshadowed other news.

John Butcher was 58 when he died. He wasone of nature’s gentlemen who began his workinglife as a policeman with the Essex force. By one oflife’s rich ironies he spent some years as amember of the vice squad, bringing to the darkerrecesses of Southend life a humanity and humourthat no doubt came as a breath of fresh air inthose far off days, and from a man whose onlyknown vices were good friends, good food and finewine. John took the enormous step of coming tothe Bar as a middle-aged family man, but he wasalways brave. After pupillages with two of Essex’sfinest, Peter Beaumont and Jeremy Gompertz, heknuckled down to the task of developing a finepractice in the criminal courts, primarily in Essex.He was always elegantly attired, always with asmile and a warm welcome. Your scribbler neverheard John speak ill of anyone, nor heard anyharsh word spoken of him. He was delighted to bewelcomed by 2 Pump Court when he had to findnew chambers in London, but he remained a loyalpart of Tina Harrington’s team in Chelmsford. Hesuffered a heart attack in court in October andwhilst colleagues and staff there did all they could,it was obvious that he had sustained majordamage. (It was typical of Chris Ball that he visitedJohn that very evening in hospital). He fought backthough, and was able to return home for shortperiods before his death in February, with hisbeloved wife and children at his bedside.

A huge number of people from all walks of lifeattended his funeral, including many judges,lawyers and court staff, police officers and otherfriends. One of John’s daughters spoke withenormous dignity and bravery about her father,and Christopher Moss spoke of John as a policeofficer, a barrister and a lifelong friend. Hereminded us of a man who represents the best ofwhat we all try to do. Our thoughts go to his family.

And then came the terrible news ofChristopher Campbell-Clyne. He was but 40,married to Emma, father to Lucy aged 7. Hesuffered a major epileptic attack in his sleep andpassed away on 24th February. He had been CircuitJunior and was nearing the end of a successfulyear as CBA secretary. He was appointed StandingCounsel to the DTI in 2002 and had alreadydeveloped a remarkable practice, on both sides ofthe court. He was a hugely valued part of the teamat 2 Bedford Row, and will be missed terribly byhis many friends at the Bar. He was one of thenicest men anyone could wish to meet. His funeralservice was suffused with an awful sadness at the

death of such a young man. All members of theMess and indeed all who knew Christopher, willwant to express their heartfelt sympathies toEmma and Lucy.

May John and Christopher rest in peace.Both John and Christopher would not wish

that I overlook other events. May I just extend thecongratulations of the Mess to two old boys of thecounty on their recent achievements. Firstly toPeter Beaumont on his appointment as Recorderof London, richly deserved. And secondly toRobert Flach – on reaching his 82nd birthday inFebruary and continuing to charm jurors intoacquitting the (wrongly) accused, not, sadly, somuch of Essex these days but of Kent, whereRobert’s career has undergone something of arenaissance over the last couple of years. Robertis now the oldest practising member of thecriminal Bar in this country but is still as sharp andalert as he was back in those pre- PACE heydays atthe Bailey. A belated Happy Birthday to you,Robert, and best wishes to Elizabeth.

The Mess enjoyed an excellent dinner inNovember at the Hilton – our thanks go to thejunior, Alan Compton, for organising the event.The Mess chairman, Nigel Lithman, Q.C.,entertained us as only he can in what will be hislast year as Boss. Chris Ball responded warmly onbehalf of the guests before leaving Alan to rise tothe challenge of following two first classspeeches. And he did with style and good humour.A splendid evening.

‘Billericay Dickie’

North London Bar MessThe best news is that HHJ Sanders is back atHarrow after an absence of four months due toillness. He was sorely missed by staff and counselalike and we are delighted to have him back at thehelm. The retirement dinner for HHJ BarringtonBlack was a huge success. Gilbert Gray, Q.C., madea brilliant speech, as did Barry Black –heckled byArlidge--and there was a band and opera. On April26, at 6 p.m., Baroness Hale of Richmond will openan exhibition for the African Children’s EducationTrust, of photographs taken by HHJ Nic Madge. Areception will follow.

Snaresbrook continues to be the busiestcourt in London, accounting for 20% of all Londoncrown court work. Recent visitors include TariqueKhaffur (Assistant Commissioner Met Police) andTim Workman (Chief District Judge). HHJRadford says that Snaresbrook is ready for thenew PCMH’s and hopes we are!

At Wood Green our best wishes to HHJ Stern,Q.C. who has had an accident at home and won’treturn to work until July. The dinner, lastDecember, to mark the retirement of HHJ Connorwas a great success. There are two new judges,HHJ Pawlak and HHJ Hope.

The Bar Mess Spring Cocktail Party will be onApril 20th at Lincoln’s Inn. This is not only anopportunity to socialise with our judges butperhaps to voice the grave concerns of membersabout the CJA, the PCMH’s and the current lack offees to cover a greatly increased workload. Pleasecome!

Nigel Lambert, Q.C., is happy for members ofthe Mess to contact him about the new system orafter April 4th, to tell him of any problems thatarise in practice. Our Mess gives its full support tothe CBA and Circuit in relation to any initiativesthat may be taken in the future.

Kaly Kaul-Junior

Circuit Squirrel…in theJungleWell life must be getting very boring in TC’s room,rumour has it that Horwell and Hilliard are goingto audition for the next ‘I’m a celebrity-get me outof here’, The elegant Jafferjee only changed hismind about competing with them when he learnedhe couldn’t take his collection of bejewelledcufflinks into the Jungle…who will be the King ofthe Jungle? In the meantime, the ever brilliantAylett has developed an obsession with milk,hoses, cold water and washing up liquid, he haseven assumed the role of a Superhero, known asMilkoman, who comes to the rescue of his fellowTC’s in an electric cart and repeats whatever anyone else says-slowly. Thank goodness SBJ now hasour Zoe to help her sort them all out.

Gledhill is also causing his chambers someconcern, on the one hand he had designed and hadmade a new lace jabot and cuffs based on a 19thcentury painting at Montacute House, on the otherhe has taken to wearing a red cord jacket, greentrousers, pink socks, and plastic bags over hisfeet. (See picture). Arlidge, who you may see inthe background of the picture, has also taken todressing somewhat unconventionally and seemsto be spending a great deal of time in Harvey Nicksbuying clothes by Dolce and Gabbana. What doyou expect of a man whose favourite programmeis Richard and Judy? He has also decided to take ahand at designing a new outfit for members of theBar who will go into battle for revised Grad fees.(see picture) Can you guess who is modellingthese fetching outfits? Better than that, if you lookat the shorter of the two, he appears to have a codpiece or he is very pleased about something!(Answers at the bottom of the page- Adam Davisfrom Dyers Buildings and Julian Evans from QEB).

In another Court, we had an example of one ofthe best quotes of the year, from none other thanour own Stephen Leslie. His junior was trying toget a helpful message to prosecution counselduring submissions, but Leslie was betweenthem. The next thing we heard, as sotto voce as

A change from wigs and gowns


23The Circui teer

Leslie can muster – which isn’t very sotto,‘Now…I really must teach you not to get involvedin other people’s submissions’. Apparently tworows of Counsel immediately collapsed inhysterical laughter, and the poor Judge lookedvery perplexed for the rest of the morning.

Over at Snaresbrook, avid followers of ‘theBill’ amongst our clients are worried at theinspiration behind the name of their main familyof arch villains, the Radfords, especially by thename of the main villain, murderer and drugdealer, one David Radford. Does our David writefor the programme? Is it just a coincidence? Is the‘Times’ Cartoon, in late February, featuring theaforementioned judge a clue?

The real gossip – as ever, is about Liz Marsh,but I can’t possibly tell you what it is, it is reallymuch too secret and I am much too scared of her.You could try asking Blunt or Jennings, they seemto know everything….or at least they think theydo……..

Thames Valley Bar MessAll is relatively quiet in the Valley, save for anincreasing dissatisfaction at the quantity of majorpieces of legislation that the Bar has had tofamiliarise itself with in no time at all.

His Honour Judge Roger Connor is retiring

from Aylesbury Crown Court June 2005. The judgethat revolutionised the lovely market town byintroducing a laptop to the bench years before histime, will be sorely missed. He leaves big shoes tobe filled. We wish him well in his retirement.

At Reading Crown Court, Rafferty J, Silber Jand Bell J have graced the bench over recentmonths and we are told several purple gowns arelisted in the diary for the rest of 2005: it seemsthat Thames Valley is making a significantcontribution to the nationwide crime statisticsand keeping them busy.

We are concerned that Kate Mallison hasbeen in hospital and has been poorly. We wish herwell.

The Mess Committee is very concerned aboutthe imminent impact of the introduction on 5thApril 2005 of "Plea and Case ManagementHearings". The Chairman will continue torepresent the Mess’s interests over the additionalwork involved, and which currently will not attractany additional remuneration .

Members of the Mess are encouraged tomake applications to the new Silk scheme now inoperation for 2006. The Chairman can becontacted for assistance, and looks forward tohelping Members in their efforts.

The Mess Committee aims to take a muchmore active role in raising the profile andpromoting the interests of those appearingregularly in the courts within our patch. These aretroubled times.

Anyone wishing to join the Mess or bring anyissue to the attention of the Mess Committeeshould contact the Chairman, Tim Raggatt, Q.C., [email protected] or the Junior Kim Preston [email protected].

Kim Preston

Herts. and Beds. Bar MessOur Annual Dinner was held at Old Hall, Lincoln’sInn on 21st January 2005 and was very wellattended. We welcomed among our guests twolong-standing friends of the Mess, Judge John

Slack and Judge Dan Rodwell, Q.C, both of whomclearly very much enjoyed the occasion.

His Honour Judge Ronnie Moss will shortly beleaving Luton after his term as resident judge, tosit at Harrow Crown Court. He is very well liked byall the regulars at Luton and we propose to hold adinner in his honour in the summer. All membersof the Bar, whether they belong to the Mess or not,are cordially invited to attend. Look out for detailsof the date and venue which will be publishedshortly.

Surrey and South LondonBar MessAfter three very successful years, Hari De Silva,Q.C., has stood down as chairman of the Mess. Hebrought particular charm and style to the role andunder his guidance, the Mess grew from strengthto strength. The committee and membership owehim a debt of thanks for his three years at thehelm.

Jeremy Carter-Manning, Q.C. was elected thenew chairman at the AGM on 3 February. We wishhim every success in a role that he has earlierfulfilled with great effectiveness. Steven Hadleyand Andrew Turton remain as secretary andtreasurer.

Our annual dinner was held on 3rd March atthe Crypt. It was, as in previous years, anoutstanding success, with 123 attending. Guestsincluded HH Judge Zucker, Q.C., Timothy Dutton,Q.C., Leader of the Circuit, and David Spens, Q.C.,chairman of the CBA. We were grateful for theimpressive number of judges present fromCroydon, Kingston, Isleworth and Guildford.Francis Sheridan was a very well received andwitty after-dinner speaker.

Our next social function is the Annual GardenParty, which will be held at Middle Temple onWednesday, 20 July. We look forward to welcomingmembers and guests there.

Sheilagh DaviesSocial Secretary

Out of Court Elegance

Upcoming Events

16 April 2005Criminal Justice Act 2003

Training at BPP Law School

20 April 2005North London Bar Mess Cocktail party

7 May 2005Sole Practitioners Road Show

10-14 May 2005Florida Advocacy Civil Course

18 May 2005South Eastern CircuitCommittee meeting

10 June 2005Circuit Roadshow to Norwich

24 June 2005South Eastern Circuit Annual Dinner

30 June 2005Dame Ann Ebsworth Memorial Lecture

4 July 2005Association of Women Barristers AGM,

House of CommonsContact Caroline Milroy, 187 Fleet Street,

020 7430 7430

13 July 2005South Eastern Circuit Committee meeting

20 July 2005Surrey and South London Bar Mess

Summer Party

29 to 31 July 2005Circuit Trip to Berlin

29 July to 6 August 2005Florida Advocacy Criminal Course

30 August to 3 September 2005Keble 2005


The Circui teer 24

Officers of the CircuitThe Leader Timothy Dutton, Q.C. Fountain Court Chambers. [email protected]

The Recorder William Hughes 9-12 Bell Yard. [email protected]

Immediate Past Recorder Max Hill 18 Red Lion Court. [email protected]

The Treasurer Simon Barker Maitland Chambers. 7406 [email protected]

Asst. Treasurer Andrew Ayres Maitland Chambers. [email protected]

The Junior Laura McQuitty 23 Essex Street. [email protected]

1st Asst. Junior Tom Little 9 Gough Square. [email protected]

2nd Asst. Junior Nicola Shannon Lamb Building. [email protected]

Past Junior Tanya Robinson 6 Pump Court. [email protected]

Director of Education Philip Bartle, Q.C. Littleton Chambers. [email protected]

Central Criminal Court Bar Mess:Chairman Richard Horwell Hollis Whiteman ChambersJunior Jason Dunn-Shaw [email protected]

North London Bar Mess:Chairman Nigel Lambert, Q.C. [email protected] Kaly Kaul [email protected]

Central London Bar Mess:Chairman Anthony Leonard, Q.C. 6, King’s Bench Walk

Surrey and South London Bar Mess:Chairman Jeremy Carter-Manning, Q.C. 9-12 Bell YardJunior Sheilagh Davies 10 King’s Bench Walk

Cambridge and Peterborough Bar Mess:Chairman Karim Khalil, Q.C. [email protected] Greg Perrins 1 Paper Buildings 0207353 3728

Herts and Beds Bar Mess:Chairman Andrew Bright, Q.C. [email protected] Alisdair Smith [email protected]

Anglian Bar Mess:Chairman John Farmer 1 Paper BuildingsJunior John Morgans Octagon House Chambers. 01603 623186

Sussex Bar Mess:Chairman Richard Camden Pratt, Q.C. 1, King’s Bench WalkJunior Jeremy Wainwright [email protected]

Kent Bar Mess:Chairman Simon Russell Flint, Q.C. [email protected] Fiona Moore-Graham [email protected]

Essex Bar Mess:Chairman Nigel Lithman Q.C. 2 Bedford RowJunior Alan Compton Trinity Chambers

Thames Valley Bar Mess:Chairman Tim Raggatt, Q.C. [email protected] Kim Preston [email protected]

Administrator Sarah Montgomery [email protected]


25The Circui teer

THE SOUTH EASTERN CIRCUIT

ANNUAL DINNERThe Annual Dinner of the South Eastern Circuit is to be held at Lincoln’s Inn on

Friday, 24th June 2005 at 7.30 for 8 pm

GUEST OF HONOUR: SIR SYDNEY KENTRIDGE, Q.C.

Those who wish to attend should apply AS SOON AS POSSIBLE

DRESS: Black tie COST: Silks £80 Juniors £65 Under 7 Years’ Call £45

Places will be allocated on a first come, first served basis and all applications must be receivedby Sarah Montgomery at the address below by Friday, 27th May 2005

Please mark the envelope ‘Circuit Dinner’ and retain this part of the formPlease note a cheque must be sent with your application, together with the names of those who

are attending (if there are several)You will be informed nearer the time whether or not your application has been successful

Sarah Montgomery289-293 High Holborn

London WC1V 7HZTel: 0207 242 1289, Fax 0207 831 9212, DX 240 LDE

Email: [email protected]

Name ................................................................................................................................................................ Year of Call.......................................................

Chambers.............................................................................................................................................................................................................................................

Telephone .................................................................................................................................................... DX .............................................................................

Email .......................................................................................................................................................................................................................................................

I AM A FULLY PAID UP MEMBER OF THE CIRCUIT

I enclose a cheque made payable to the South Eastern Circuit for £ ...........................................................................................

*If possible I would like to sit next to ...............................................................................................................................................................................................................

*I have no seating preference

*I require a vegetarian meal Yes/No


The Circui teer 26

Circuit Trip 2005Berlin 29 to 31 July 2005

‘Reborn as the coolest city in the world’, Berlinhas been selected as our destination this year.There is plenty to do and see, and the weekendwill provide the usual opportunity to mix a littlebusiness with masses of pleasure and fun.

We intend to meet with the local BarAssociations, with whom the English Bar has had astrong relationship over the years. They do thingsdifferently for their members, and we need to findout more, perhaps learning something along theway. It is also a chance to mingle with ourcolleagues, spouses and partners in a great socialsetting. Past experience suggests that this will beyet another enjoyable and satisfying trip for all.Come and join us on this away weekend. The beeris very good too.

Proposed itinerary:July 29: Fly from Heathrow at 19.10 hours,

arriving 21.55 hoursJuly 30: Morning: meeting with Berlin lawyers

Afternoon: cultural tourJuly 31: Return flight at 19.40 hours, arriving

Heathrow 20.35

Cost: £350 per person, on the basis of a couplesharing A small supplement may be charged for singleoccupancy of roomsFirst Class hotel accommodation for two nights,transport to and from the airport and dinner onSaturday night included.

PLEASE NOTE: Only 25 seats have been reservedon the flightYOUR PLACE(S) WILL BE RESERVED BYSENDING A CHEQUE [made payable to SOUTHEASTERN CIRCUIT BAR MESS] to:

Oscar Del Fabbro23 Essex Street, London WC2R 3AA

DX 148 LDEEmail: [email protected]

You are advised to take out suitable travelinsurance. Cancellation may not result in arefund.

The Florida Advocacy CourseCivil Course: 10 to 14 May 2005

Criminal Course: 29 July to 6 August 2005

Open to members up to six years’ Call. Apply (enclosing a CV) to Laura McQuitty, 23 Essex Street, London WC2R 3AA

[email protected]

Florida veteran Tetteh Turkson of 23 Essex Street reflects on his experience and urges fellowCircuiteers to apply:

Under the regime of New Practitioners Points andCPD points, people are always keen to find aspainless a way as possible to accumulate thehours. When I first heard about the advocacycourse in Florida, I thought it would be a fantasticsolution to my own NPP problem. I was a pupil,just coming up to a tenancy decision, and itseemed the perfect excuse for a holiday withoutthe (theoretical) risk of incurring the wrath ofeither clerks or tenancy committee.

I saw what was involved: a week’s coursebased on two criminal cases—one attemptedmurder and one sale of drugs—taught by a facultyof Floridian state attorneys, public defenders, andjudges, as well as local people who appear in theFederal court. My first concern was that therewould be too many applicants but every year,surprisingly, few people apply. I suspect thateither everyone thinks it will be hopelessly over-subscribed, or no one quite knows to whom it issuited. My view is that it is best to have at least acouple of crown court trials under your belt

before going. Most Floridians had done tens ofjury trials. For us, it is a fantastic opportunity totry out new styles and approaches.

The teaching is not as structured orconsistent as in England, although there are someof the same features, such as video review. TheBritish approved method was not always followedbut most of the trainers used a form of it. Eachhad his or her stylistic preferences. I found itparticularly interesting that the Federal style ismost similar to ours—no walking about withoutexpress permission (rarely granted) from thejudge. As a result, guidance from Federaladvocates barely had to be adapted at all. Theother faculty members will listen carefully to whatis permissible and will give feedback forimprovements. On the whole, the teaching staffencouraged a measured approach. Having saidthat, nothing quite prepares one for the seeminglyacceptable practice of making objections foreffect.

Best of all, the Florida Bar Associationpays your course fee and hotel expenses,leaving you merely to pay for the flights toGainesville. This results from a long-standing association between the FloridaBar and the South Eastern Circuit. Inturn, we have invited some of theirtrainers to Keble.

A large part of the course is social. It gives anopportunity for the hosts to get to know oneanother, but it is also a powerful way ofmaintaining the links between the Florida Bar andus. The atmosphere is suitably convivial.

Everyone stays in the same, comfortablehotel, complete with swimming pool and hot tub.Our hosts were extremely generous and in returnwe hosted a party with our traditional drinks—Pimm’s, gin and beer that tastes of something.

I would recommend the Florida course toanyone. Some of the people I trained with haveremained lasting friends.


27The Circui teer

Keble 2005The 2005 South Eastern Circuit Bar Mess Foundation Advanced

International Advocacy Course at Keble College, Oxford

Tuesday 30th August to Saturday 3rd September 2005

The Foundation runs this established advanced course in Oxford for Practitioners in both Civil and Crime andfor members of other professions and the public interested in acquiring or improving their advocacy skills.

Teachers and participants will also be attending from the USA, South Africa and Australia.

Participants will undertake every stage of the process to trial and will:

• Conduct conferences with, examine and cross-examine experts in difficult cases• Conduct full, filmed witness trials before a judge or jury

• Be individually taught on each piece of work• Be filmed, reviewed and guided on presentation in Court, including at trial

• Have written argument reviewed

THE FACULTY OF 2005 INCLUDES:

Judges includeLord Justice BrookeHH Neil Denison QCHHJ Michael Lawson QCHHJ Simon DavisMr Justice Mumby

Silks includeTimothy Dutton QCToby Hooper QCKim Hollis QCJo Korner QCJeffrey Pegden QCAnesta Weekes QCGeraldine Andrews QCPhilip Bartle QC

Philip Brook Smith QCRichard Davies QCEdwin Glasgow QCCharles Haddon Cave QCMichel Kallipetis QCMichael Lerego QCChris Shanahan SC(Australia)Geoffrey Shaw QCRichard Wilson QC

Juniors includeSarah ClarkeStephanie FarrimondLouis FrenchSiobhan Grey

Ian LawrieBernard RichmondPhilip ShorrockBernie TetlowSarah WhitehouseCatherine BrownSimon BrowneRichard ColemanDavid DabbsPaul GottPeter HarrisonRebecca StubbsGeorgina KentHelen Malcolm

The Foundation encourages your chambers to sponsor junior tenants andHSBC provides assistance to successful applicants

To obtain an application form please contactSarah Montgomery by email on [email protected] or by fax: 020 7831 9217.

Circuit Office address: 289-293 High Holborn, London WC1V 7HZ, DX: 240 LDE (Tel: 020 7242 1289)APPLICATION FORMS MUST BE RECEIVED NO LATER THAN 4PM ON FRIDAY 27 MAY 2005 – BUT APPLY EARLY!

NB: THIS COURSE PROVIDES NO LESS THAN 42 HOURS OF THE CPD REQUIREMENTS, WHICH INCLUDES 6 HOURSOF ADVOCACY AND 3 HOURS OF ETHICS


The attentive local jury

Mr Recorder Dutton, Q.C. presides

Circuit Trip to WarsawSee page 9

Happy to do Hampel: Tim Dutton, Q.C.having outlined the method

The Warsaw Bar and visitors

Tim Dutton replies for the Circuit

The Old Town, Warsaw


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